Archive | Environment

Wind Farm Permits to Kill Protected Eagles

Yesterday the Department of Interior finalized a rule that allows wind farms to get 30-year permits allowing them to kill federally-protected eagles. Eagles are frequent accidental victims of power plants and wind turbines, and the government has long taken the position that it is a federal crime to kill an eagle even unintentionally. To get the permit, the farms have to take various conservation measures.

Apropos of Eugene’s blogging this week, there is also a RFRA connection. In 2008, the Tenth Circuit decided a case called United States v. Winslow Friday, in which Mr. Friday was prosecuted for killing a bald eagle to use in his tribe’s religious ritual. One of Mr. Friday’s arguments on appeal was that RFRA requires the federal government to treat tribal killings and power-company killings of eagles with parity. The Court did not disagree with this premise, but concluded, at the time, that “with respect to both religious and secular threats to the eagle, the government appears to take a similar approach.” [...]

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Climate Change Goes Back to Court

This morning, the Supreme Court granted certiorari in Utility Air Regulatory Group v. EPA concerning the Environmental Protection Agency’s regulation of greenhouse gases under the Clean Air Act. This is quite significant. Although the grant is limited, it focuses on one of the most important legal questions raised by this litigation, and puts some of the EPA’s regulation of greenhouse gas emissions from stationary sources in play.

Harvard’s Richard Lazarus comments:

The Court’s jurisdictional ruling is significant in terms of both what the Court granted and did not grant. The regulations the Court has agreed to review represent the Obama Administration’s first major rulemaking to address the emissions of greenhouse gases from major stationary sources across the country. At the same time, the Court declined to review EPA’s determination that greenhouse gases from new motor vehicles endanger public health and welfare and therefore has left intact the government’s current regulation of motor vehicles emissions to address climate change.

I largely agree, but would go farther in certain respects.

Here’s some background (see also my prior posts here and here). Various states, industry groups, and activist organizations had filed cert petitions – nine in total – and others filed amicus briefs (including yours truly) urging the Court to take this case. The Court was asked to consider many different questions, but only agreed to consider one of its own devising. Specifically, the Court granted six of the nine petitions and agreed to consider the following question: “Whether EPA permissibly determined that its regulation of greenhouse gas emissions from new motor vehicles triggered permitting requirements under the Clean Air Act for stationary sources that emit greenhouse gases.” In other words, the Court wants to know whether the EPA was required to apply Section 165 and Title V of the Act [...]

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Conservatives and Environmental Regulation

There is fairly broad opposition to centralized environmental regulation within the Republican Party today.  Conservative activists in particular focus their ire on the Environmental Protection Agency and federal efforts to maintain or enhance environmental quality.  It was not always so.  The American conservation movement has roots on the right side of the political spectrum and much of today’s environmental architecture was erected under Republican leadership.  President Nixon signed the National Environmental Policy Act and created the Environmental Protection Agency while President Bush (41) supported and signed the 1990 Clean Air Act Amendments, the most expansive (and expensive) piece of environmental legislation to date.  Today Republicans in Congress are fairly united in their opposition to using the 1990 Clean Air Act to regulate greenhouse gases.

Judith Layzer’s Open for Business: Conservatives’ Opposition to Environmental Regulation chronicles the rise of anti-regulatory conservatism. I review Layzer’s book in the Summer issue of The New Atlantis. As Layzer notes, the fervor anti-regulatory sentiment on the political right has not been matched by a commitment to developing alternative approaches to environmental protection. Indeed, it seems that many conservatives are content to accept that regulatory stringency and expansiveness is a sound proxy for environmental protectiveness. This is one reason that anti-regulatory conservatism has not been particularly successful politically.

Anti-regulatory rhetoric may be pervasive, but federal environmental regulation has continued to expand, under Democratic and Republican presidents alike. Anti-regulatory conservatives have been able to stem the tide of regulatory initiatives, but only for a time. The failure to develop and advance non-regulatory alternatives to environmental problems has compromised efforts to constrain the EPA’s regulatory authority. There are plenty of Americans who are suspicious of federal regulation, but they nonetheless prefer federal environmental regulation to no environmental protection at all.

The failure of anti-regulatory conservatism is on [...]

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What Russia’s Piracy Charges Against Greenpeace Mean for International Law

Amazingly, Russia has brought criminal piracy charges against the crew of the Greenpeace ship Arctic Sunrise, which it had arrested on the high seas. The piracy charges make a mockery of international law, for reasons I’ve discussed. Moreover, such clearly abusive and politicized piracy charges are quite unprecedented in modern history, as far as I can recall. Indeed, I am quite surprised by the charges; I had thought Russia would consider the arrest and initial detention sufficient harassment. (But I was more on the mark with my comparison to Pussy Riot – apparently supporters of the Dutch-flagged vessel are now calling it the Pussy Sunrise.)

The charges are significant for international law because historically nations have been extremely wary of pre-textual or politicized piracy charges. To be sure, nations often publicly accused their enemies of piracy – the U.S. in the Quasi-War constantly denounced aggressive French privateering as “piracy.” In the Civil War, President Lincoln also called the obviously-unrecognized Confederate privateers as pirates. But in these cases the matter would almost never proceed from propaganda to prosecution.

One of the more recent politicized invocations of piracy was the Santa Maria incident of 1961, when anti-Salazar forces hijacked a Portuguese cruise ship. Lisbon denounced the attackers as pirates and demanded their arrest. But because the attackers had come on board as passengers, it did not satisfy the “two ship” requirement, just like in the present case, and the international community did not support the piracy characterization. (The terrorists ultimately got asylum in Brazil.) The point is that looks a lot more like piracy than this, and even still did not meet the requirements.

An internationalist explanation would suggest that this is because nations understood that piracy charges are heavy medicine. It is one of the very few justifications for arresting [...]

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The Impact of Automation on Environmental Impact Statements

Since the 1950s, the Long Beach Freeway has linked the massive Ports of Long Beach and Los Angeles to, roughly, the rest of the continental United States. Because much has changed in trade and traffic since then, California’s relevant transportation authorities have decided that perhaps this freeway should change as well.

The resulting Draft Environmental Impact Statement (EIS), released in 2012, includes several project alternatives that feature a dedicated four-lane freight corridor for the many trucks that service the ports. In two of these alternatives, all of the trucks on the corridor are assumed to have automated steering, braking, and acceleration that enables them to travel in closely spaced platoons of six to eight vehicles. Smoother flows and lower headways mean higher vehicular capacity.

Automation–or at least automation-related litigation–is coming to an EIS near you.

For a transportation project, automation may be relevant to many of the project alternatives, including the no-build. Potential highway expansions typically use a planning horizon of at least twenty years, and yet several automakers now forecast that they will market vehicles with some kind of advanced automation within a decade. (To put this in slightly more skeptical terms, the self-driving cars that have been twenty years away since the 1930s are now just ten years away.)

As I have argued, the ongoing automation of our transportation system could change land use patterns, increase both travel demand and roadway vehicular capacity, and improve the vehicular level of service at capacity. This means that some of the basic assumptions upon which an EIS’s alternatives analysis is based, like a freeway lane’s theoretical capacity of 2400 vehicles per hour, may be outdated by the time a project alternative is implemented.

In addition, as with the Long Beach Freeway analysis, particular alternatives may involve the automation of vehicles [...]

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Greenpeace & Russia – an International Pussy Riot

I blogged earlier about Russia’s illegal seizure of a Greenpeace vessel in international waters, and its laughable characterization of their acts as maritime piracy. The ship Arctic Sunrise had been boarded after an attempt to board or come alongside a Russian oil rig for some kind of non-violent protest. Subsequently, Vladimir Putin apparently poured cold water on potential piracy charges, leading some to think it would be a passing squall.

Instead, a Russian court has ordered all 30 crew members of varying nationalities jailed for two months pending an investigation. The ship also not been released, and the Netherlands, as the flag state, may file prompt release proceedings in the International Tribunal for the Law of the Sea.

The incident is a kind of international Pussy Riot. You may recall that Russia gave two-year jail sentences to members of that “feminist punk rock protest group” for some kind of raunchy, uninvited performance in a Russian Orthodox Church. (I am not entirely clear on the goals of the group or their methods.) While the sentence was widely decried, it does seem that Pussy Riot was engaged in a particularly provocative protest, that almost certainly took liberties with other people’s property. The legal action against them was not unreasonable – it was the nature and severity of the action that defied all proportion, and revealed a heavy-handed intolerance of protest.

Greenpeace is in a similar situation. They may have committed technical trespass, and certainly should not protest at finding themselves in court. But jail is another matter. There is one big difference: with Pussy Riot, Putin was bullying his own nationals, in his own capital. Now Russia is throwing its weight around against foreigners on a foreign-flagged vessel in international waters, which is not just thuggish, but a violation [...]

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EPA Proposes New Carbon Standards for Power Plants

Today the Environmental Protection Agency is proposing carbon dioxide emission standards for new power plants that will, in effect, bar the construction of new coal-fired power plants without costly carbon capture technology.  The proposed standards would require both natural gas and coal-fired power plants to meet stringent new limits — limits that most new natural gas plants can meet, but that are not (yet) met by any coal-fired plant in regular operation.  At present, the average U.S. coal plant emits over 1,700 pounds CO2 per megawatt-hour (Co2/MWh).   The average natural gas plant emits around 850 lbs CO2/MWh.  Although the new rule sets slightly different thresholds for coal and gas plants (and distinguishes between smaller and larger gas plants), if finalized, all power plants would have to meet an emission standard of 1,100-1,000 lbs. CO2/MWh. Here’s a graphic illustrating the standards.

As the Washington Post reports, the standard (if finalized) is sure to be challenged in court.  The relevant statutory provision provides that the EPA should set a

standard for emissions of air pollutants which reflects the degree of emission limitation achievable through the application of the best system of emission reduction which (taking into account the cost of achieving such reduction and any nonair quality health and environmental impact and energy requirements) the Administrator determines has been adequately demonstrated.

The problem is that the only coal-fired power plant capable of meeting the new standard is a federally funded demonstration project set to open next year at which carbon capture and sequestration may be easier (and less expensive) than at other plants.  In the alternative, the only way to meet the standard would be to use natural gas instead of coal.

If the rule is finalized in its present form, coal interests will sue.  At issue will be whether such [...]

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Coase on Externalities

The existence of “externalities” — effects (costs or benefits) of market transactions that are not experienced by those involved in the transaction, but are instead experienced by others, those “external” to the transaction —  is routinely proffered as a justification for governmental regulation of private economic activity.  Ronald Coase had a different view, however. In his seminal essay, “The Problem of Social Cost,” Coase never used the term — and with good reason. In Coase’s view, the word “externality” did not do much work.  In his introduction to The Firm, The Market, and the Law, Coase wrote:

the existence of “externalities” does not imply that there is a prima facie case for government intervention, if by this statement is meant that, when we find “externalities,” there is a presumption that governmental intervention (taxation or regulation) is called for rather than the other courses of action which could be taken (including inaction, the abandonment of earlier governmental action, or the facilitating of market transactions). . . .

. . . it is easy to show that the mere existence of “externalities” does not, in itself, provide any reason for governmental intervention. Indeed, the fact that there are transaction costs and that they are large implies that many effects of people’s actions will not be covered by market transactions. Consequently, “externalities” will be ubiquitous. The fact that governmental intervention also has its costs makes it very likely that most “externalities” should be allowed to continue if the value of production is to be maximized. This conclusion is strengthened if we assume that the government is not like Pigou’s ideal but is more like his normal public authority–ignorant, subject to pressure, and corrupt. Whether there is a presumption, when we observe an “externality,” that governmental intervention is desirable, depends on the cost

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EPA Fares Well in D.C. Circuit

As I noted here, some progressives argue that the U.S. Court of Appeals for the D.C. Circuit is engaged in a “judicial jihad against the regulatory state,” environmental regulations in particular.  It seems someone forgot to tell the judges on the D.C. Circuit, for as Greenwire reports, the Environmental Protection Agency fares rather well in a court that is allegedly stacked with anti-regulatory zealots, and a large share of the EPA’s losses come from environmentalist groups or other interests seeking more stringent regulation, not regulatory relief.  From the story:

Obama and Senate Democrats say the nominees to the U.S. Court of Appeals for the District of Columbia Circuit are needed to fill out its 11-member bench and restore balance to a court that has been dominated by Republican appointees.

But a close look at rulings over the last year in the environmental, energy and conservation realm shows that the administration — and in particular, U.S. EPA — has fared well at the D.C. Circuit. . . .

The D.C. Circuit has ruled on more than 20 significant challenges to EPA regulations since June 2012. Of those, EPA won at least a dozen, or 60 percent, a better performance than EPA had at the circuit during George W. Bush’s administration, when it frequently lost to environmentalists. On top of the dozen, the agency scored partial wins in other cases by prevailing on some issues while losing on others.

While the Obama EPA has fared rather well in the D.C. Circuit, the Bush EPA did not — even in front of the same judges. [...]

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Learning How to Fish

Speaking of fish, the UCLA Journal of Environmental Law & Policy has just released my most recent paper, “Learning How to Fish: Catch Shares and the Future of Fishery Conservation,” co-authored with my former student Nathaniel Stewart. Here’s the abstract from SSRN:

Fisheries the world over are poorly managed and under stress. Yet, proper fishery management can both conserve fisheries and maintain their value as a resource for human consumption. One approach long recommended by economists has been the allocation or recognition of property rights in fisheries. The ability of such methods to enhance economic efficiency is no longer a matter of academic speculation or economic theory. There is ample empirical evidence that such institutional reforms encourage more efficient fishery exploitation. There is also growing empirical evidence that such reforms produce social and ecological benefits, increasing safety for fishery participants and encouraging greater resource stewardship. The use of property-based management aligns fisher incentives with the underlying health of the resource, and appears to reduce the adverse environmental effects of commercial fishing.

The sad part of the story is that as the empirical evidence in support of property-based fishery management has accumulated, Republicans have looked the other way. Indeed, because the Obama Administration supports the greater use of catch shares, many Republicans have concluded they must be a bad idea, placing partisanship over sound policy. [...]

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Teaching Carnivorous Fish to Be Vegetarians

the Washington Post reports on a successful effort to convert captive cobia to a vegetarian diet.

The conversion of these carnivorous fish to a completely vegetarian diet is a first, according to the University of Maryland Center for Environmental Science, and a key to breaking a cycle in which the ocean’s stocks of small fish — menhaden, anchovies and sardines — are plundered by industrial fishing partly to provide fish feed to aquaculture, one of the fastest-growing economic sectors in the world.

“It would take the pressure off harvesting the menhaden fishery,” Place said, referring to the bony and oily little fish billed as the most important in the sea. Menhaden, caught off Virginia’s coast, feed a plethora of marine animals, including dolphin, swordfish and birds.

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How Not to Convince Republicans to Address Climate Change

It’s fair to say that only one political party today considers climate change to be a problem worth addressing. As readers know, I wish it were otherwise and believe there is a conservative case for addressing climate change.  I welcome others to this cause. This NYT op-ed, “A Republican Case for Climate Action,” is not the sort of thing that will help.  The article is by four former EPA Administrators who served in Republican Administrations: William Ruckelshaus, Lee Thomas, William Reilly, and Christine Todd Whitman.  Neither the message nor the messengers are likely to have much influence with a Republican audience.   It’s a case study of how not to try and influence people with differing political priorities.

Let’s start with the authors. Yes, all four served Republican Presidents, but none are known as Republican leaders or are particularly influential in Republican circles. Indeed, it’s not clear they should all even be identified as Republicans. Whitman may still give money to liberal Republicans, but her co-authors are regular contributors to Democratic campaigns. Reilly, for instance, may have given a primary contribution to Mitt Romney in 2011, but according to OpenSecrets.org the remainder of his recent political contributions have all gone to Democrats, including Elizabeth Warren (who, one should recall, was running against one of the more liberal GOP Senators). Thomas and Ruckelshaus appear to give to both sides. However one wishes to characterize these four, it would not be as “respected GOP leaders” and they are not likely to carry much weight in politically active GOP circles.

Then there’s the substance of the argument, little of which is responsive to Republican concerns about the size of government or cost and intrusiveness of federal regulation. The four suggest that a carbon tax would be a relatively efficient way to reduce greenhouse [...]

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America’s Water and Wastewater Crisis

I have a review of America’s Water and Wastewater Crisis: The Role of Private Enterprise by Lewis Solomon now up on the Liberty Law Blog. Here’s how my review begins:

Many environmental problems are exaggerated. Water scarcity is not. If anything, water supply problems are ignored. Inefficient water allocations and deteriorating urban infrastructure cannot compete with charismatic megafauna in direct-mail appeals. Yet water scarcity is a serious environmental concern. Water is essential to life, we are repeatedly told, and it is woefully mismanaged throughout much of the world. Though naturally abundant and readily reusable, fresh water is often in short supply where needed most. Access to water may be heralded as a public right, but it can be costly to provide and protect. Water is also a source of conflict, both in the U.S. and abroad. The U.S. Supreme Court hears cases concerning the allocation of water rights among states with some regularity.

Here in the United States, water supplies are routinely squandered while water infrastructure deteriorates. Governments have ensured politically potent constituencies get their water, but have been less diligent about making them pay for it. Now the bills are coming due, particularly in urbanized areas. How the nation manages its water supplies and associated infrastructure in the coming decades will impact billions of people. Indeed, water supplies could easily become the most important environmental issue of the 21st century, even if it does not (yet) merit Hollywood appeals.

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DELPF’s “Conservative Visions of Our Environmental Future” Symposium

The Duke Environmental Law & Policy Forum has published the papers from the Fall conference on “Conservative Visions of Our Environmental Future” about which I blogged here. Other contributors include former Rep. Bob Inglis, Shi-Ling Hsu (Florida State), Reed Watson (PERC), Nicholas Loris (Heritage Foundation), Eli Lehrer (R Street Institute), and James Salzman (Duke). PDFs are on-line here. [...]

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Case Western Reserve Law Review Symposium on Hydraulic Fracturing

The Case Western Reserve Law Review has published its fall symposium on “The Law and Policy of Hydraulic Fracturing: Addressing the Issues of the Natural Gas Boom.”  I blogged about the symposium here.  The full issue is available onilne in PDF, and I’ve posted links to the articles below.

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