Archive | Environment

Is a Wind Turbine a Nuisance?

Wind turbines may be a promising low-carbon power source, but the communities in which they are sited do not always welcome them with open arms. Residents of the Forest hills subdivision in Washoe Valley, Nevada, were none to pleased when one of their neighbors planned to erect a wind turbine to power his home. They sued, alleging the 75-foot-tall turbine would constitute a nuisance, and won. While noting that “the aesthetics of a wind turbine alone are not grounds for finding a, nuisance,” the Nevada Supreme Court ruled that “a nuisance in fact may be found when the aesthetics are combined with other factors, such as noise, shadow flicker, and diminution in property value.” On this basis, the court upheld the lower court’s determination that the wind turbine would constitute a nuisance, and could be enjoined. […]

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Justice Scalia, Environmental Champion

Today the Supreme Court decided Decker v. Northwest Environmental Defense Center.  By a vote of 7-1 (with Justice Breyer not participating) the Court held that the Clean Water Act and its implementing regulations do not require timber companies to obtain NPDES permits for stormwater runoff from logging roads.  The sole dissenter was Justice Scalia, who would have affirmed the decision of the U.S. Court of Appeals for the Ninth Circuit holding that NPDES permits were required.  In Justice Scalia’s view, the plain meaning of the EPA’s implementing regulations required this result, even though the EPA argued for an alternative interpretation.  So not only was Justice Scalia the only justice to support the position advocated by environmentalist groups (and the Ninth Circuit), he also rejected the interpretation advanced by the executive branch.

UPDATE: For more on the substance of Scalia’s dissent, see this post. […]

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A “Conservative Vision” for the Future of Environmental Policy

Last fall, I participated in a conference at Duke Law School on “Conservative Visions of Our Environmental Future,” sponsored by the Duke Environmental Law and Policy Forum, Nicholas Institute for Environmental Policy Solutions, Nicholas School for the Environment, Duke Federalist Society, Duke College Republicans and the Energy & Enterprise Initiative.   I blogged the event, summarizing the various talks as they occurred, save for my own. (It’s a bit hard to talk and type at the same time.)

A brief paper, summarizing my remarks, is now on SSRN.  Here’s the abstract:

The existing environmental regulatory architecture, largely erected in the 1970s, is outdated and ill-suited to address contemporary environmental concerns. Any debate on the future of environmental protection, if it is to be meaningful, must span the political spectrum. Yet there is little engagement in the substance of environmental policy from the political right. Conservatives have largely failed to consider how the nation’s environmental goals may be best achieved. Perhaps as a consequence, the general premises underlying existing environmental laws have gone unchallenged and few meaningful reforms have proposed, let alone adopted. This essay, prepared for the Duke Law School conference on “Conservative Visions of Our Environmental Future,” represents a small effort to fill this void. Specifically, this essay briefly outlines a conservative alternative to the conventional environmental paradigm. After surveying contemporary conservative approaches to environmental policies, it briefly sketches some problems with the conventional environmental paradigm, particularly its emphasis on prescriptive regulation and the centralization of regulatory authority in the hands of the federal government. The essay then concludes with a summary of several environmental principles that could provide the basis for a conservative alternative to conventional environmental policies. 

This paper will be published along with other papers from the conference in a symposium issue of the  […]

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D.C. Circuit Rejects Challenges to Polar Bear Listing

This morning the U.S. Court of Appeals for the D.C. Circuit handed down a unanimous opinion rejecting both industry and environmentalist group challenges to the Fish & Wildlife Service’s decision to list the polar as a “threatened” species.  Environmentalist groups argued the FWS should have listed the polar bear as “endangered.  Industry groups and their allies thought the polar bear should not have been listed at all.  Applying the highly deferential review that is customary in these sorts of cases, the panel had little difficulty dispatching both sides’ claims.  While there are some questions about the FWS’ critical habitat designation for the polar bear, which was thrown out by a federal district court judge in separate litigation, my sense is that the D.C. Circuit got this one right.  A federal agency’s assessment of the relevant scientific literature is due substantial deference.

I have prior posts on the polar bear listing and litigation here, here, and here.  See also this article from The New Atlantis. […]

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Exaggerating Species Extinction – The Sequel

In 2011 I noted a report in Nature suggesting that species extinction rates have been overestimated. A new report in Science has similar implications, suggesting that fears many species will go extinct before they are even discovered are overblown. Specifically, the study suggests many common estimates exaggerate the likely number of species and presume greater extinction rates than can be verified. The abstract for the new study, “Can We Name Earth’s Species Before They Go Extinct?” reads:

Some people despair that most species will go extinct before they are discovered. However, such worries result from overestimates of how many species may exist, beliefs that the expertise to describe species is decreasing, and alarmist estimates of extinction rates. We argue that the number of species on Earth today is 5 ± 3 million, of which 1.5 million are named. New databases show that there are more taxonomists describing species than ever before, and their number is increasing faster than the rate of species description. Conservation efforts and species survival in secondary habitats are at least delaying extinctions. Extinction rates are, however, poorly quantified, ranging from 0.01 to 1% (at most 5%) per decade. We propose practical actions to improve taxonomic productivity and associated understanding and conservation of biodiversity.

The study itself is behind a paywall, but Science Daily has more here. (Hat tip: Ronald Bailey)

That global species extinction rates may have been exaggerated does not mean that extinction and biodiversity loss are not serious problems. I believe they are. While I am unconvinced by the arguments that a loss of biodiversity threatens humanity — largely because the available empirical evidence suggests otherwise — I believe that species extinctions impoverish the world in which we live, and support efforts to protect biodiversity, so long as they are suitably protective […]

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Are Plastic Grocery Bag Bans Bad for Public Health?

San Francisco banned disposable plastic grocery bags in 2007. It’s not alone. Several dozen communities around the country have adopted similar policies, all in the name of environmental protection. Those thin plastic bags may require far less material than in years past, but some still see them as wasteful. New research, however, shows that banning those plastic grocery bags may be bad for your health.

In a paper up on SSRN, the University of Pennsylvania’s Jonathan Klick and George Mason’s Joshua Wright (recently confirmed as a Commissioner on the Federal Trade Commission) present evidence that bans on disposable plastic grocery bags lead to an increase in food-borne illness. Here’s the abstract:

Recently, many jurisdictions have implemented bans or imposed taxes upon plastic grocery bags on environmental grounds. San Francisco County was the first major US jurisdiction to enact such a regulation, implementing a ban in 2007. There is evidence, however, that reusable grocery bags, a common substitute for plastic bags, contain potentially harmful bacteria. We examine emergency room admissions related to these bacteria in the wake of the San Francisco ban. We find that ER visits spiked when the ban went into effect. Relative to other counties, ER admissions increase by at least one fourth, and deaths exhibit a similar increase.

The results really should not be all that surprising. As Businessweek reports, prior research found that few people regularly wash reusable grocery bags or take other precautionary steps (such as using separate bags for meat and produce). So, not surprisingly, tests find coliform and even e.coli bacteria in a significant percentage of bags.

Of course one solution is to encourage shoppers to take better care by regularly washing their grocery bags and storing them in places where bacteria is less likely to form. But would such educational […]

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Yet Another Bush EPA Air Rule Goes Down – 2013 Edition

Last week, the U.S. Court of Appeals for D.C. Circuit struck down rules promulgated by the Environmental Protection Agency to implement the national air quality standards for fine particulates in Natural Resources Defense Council v. EPA. (Story here.) One thing that’s notable about the decision is that the Court was reviewing a pair of rules promulgated in 2007 and 2008. It’s also notable is that this is yet one more decision in which the D.C. Circuit rejected a Bush Administration air pollution regulation. As I’ve noted before (see also here), the Bush Administration appeared to have a pretty poor record at defending its air pollution regulations in federal court. Time-and-again, the D.C. Circuit found, the EPA failed to comply with the Clean Air Act in issuing its rules. Some of the EPA rules at issue may have made good sense, from a policy perspective, but they were illegal nonetheless. This string of losses — combined with some of the Obama Administration’s failed efforts to replace the invalidated Bush-era rules — may indicate that portions of the Clean Air Act are outdated and in need of reform, but that does not excuse an agency’s failure to follow the law. Whatever the cause, the Bush EPA had a particuarly hard time complying with Clean Air Act. […]

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Merrill on “Fear of Fracking”

This morning, Columbia’s Thomas Merrill delivered the keynote address at the Case Western Reserve Law Review symposium on “The Law and Policy of Hydraulic Fracturing: Addressing the Issues of the Natural Gas Boom.” His talk, “Fear of Fracking,” sought to addressed four important questions about fracking: 1) Why did fracking technology emerge in the United States rather than somewhere else? 2) Does fracking present any novel environmental risks? 3) Insofar as there are novel risks from fracking, how could they be best addressed? 4) What should a citizen concerned about climate change think about fracking?

These are important questions about an important topic. As Merrill noted, fracking has rapidly emerged as intensely polarizing environmental issue, celebrated by some as an economic and ecological savior and decried by others as a threat to landowners, local communities, and the environment. The Wall Street Journal believes fracking heralds the rise of “Saudi America,” while some environmental groups fear fracking will further feed America’s addiction to carbon-based fuels.

Whatever its ultimate ecological impact, the combination of hydraulic fracturing and horizontal drilling promises to dramatically increase domestic oil and gas reserves, drive down energy prices and fundamentally transform the energy sector. North Dakota now produces more oil than any state but Texas and the oil and gas boom in this state is enriching landowners tremendously. Every president since President Nixon has called for energy independence. Fracking’s rise could make this possible within the next few decades. Beyond that, fracking and the proliferation of cheap gas, Merrill suggested, likely means the end of the nuclear power industry in the United States and has thrown the coal industry into a tailspin. Cheap gas is a bigger threat to coal than any alleged “war on coal” waged by the Environmental Protection Agency. It also threatens the future of […]

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Dispatches from the Duke Conference on “Conservative Visions of Our Environmental Future”

Today I am at Duke to participate in a conference on “Conservative Visions of Our Environmental Future,” sponsored by the Duke Environmental Law and Policy Forum, Nicholas Institute for Environmental Policy Solutions, Nicholas School for the Environment, Duke Federalist Society, Duke College Republicans and the Energy & Enterprise Initiative. The conference is being live streamed here, and I’ll be offering comments on the proceedings below. […]

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Sackett v. EPA and the Due Process Deficit in Environmental Law

Last term, in Sackett v. Environmental Protection Agency, a unanimous Supreme Court rejected the EPA’s effort to deny private landowners an opportunity to challenge the agency’s assertion of jurisdiction over their land. The Sacketts wanted to build a home in a subdivision, but the EPA concluded the Sacketts’ land to contain jurisdictional wetlands under the Clean Water Act and issued an order requiring the Sacketts to cease construction of their home and undertake specified restoration efforts. Failure to comply with the order was itself punishable with substantial fines, in addition to any for violating the CWA. The Sacketts sought judicial review of the order, on both statutory and constitutional grounds, to no avail in the lower courts. They prevailed in the Supreme Court, however, completely on statutory grounds, leaving the due process questions to another day.

The Court based its decision on the Administrative Procedure Act’s presumption in favor of judicial review of final agency actions and the CWA’s failure to expressly preclude such review. But what if the CWA had precluded review? Would the Sacketts have been entitled to judicial review under the Due Process Clause? And more broadly, given the uncertainty surrounding the scope of federal wetland regulation, and the lack of fully enforceable jurisdictional regulations, does current CWA enforcement more generally comport with the principles of due process? I explore some of these questions in a forthcoming article in the Cato Supreme Court Review, “Wetlands, Property Rights, and the Due Process Deficit in Environmental Law.” The abstract is below.

In Sackett v. Environmental Protection Agency a unanimous Supreme Court held that private landowners could seek judicial review of an Administrative Compliance Order issued by the Environmental Protection Agency alleging that their land contained wetlands subject to regulation under the Clean Water Act. The Court’s decision


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Is Organic Food Healthier or Safer?

A new study fails to find scientific support for claims organic food is healthier or safer than conventional alternatives and everyone acts as if this is a surprise. It shouldn’t be. Scientific research has fairly consistently failed to validate the claimed superiority of organic food, as I’ve noted in prior posts over the past ten years (see, e.g., here, here, and here). Organic foods do not consistently show higher nutrient levels than conventional foods, nor are there even clear environmental advantages. Organic farming uses less energy and fewer chemicals, but it also tends to be more expensive and requires more land — meaning that a widescale shift to organic production would increase food costs and require putting more acres under plow, with consequent negative effects on species habitat.

For this latest study, published in the Annals of Internal Medicine, Stanford researchers conducted a meta-analysis of over 200 studies looking at the differences between organic and conventional foods, and concluded “the published literature lacks strong evidence that organic foods are significantly more nutritious than conventional foods.” Organic foods tended to have lower pesticide residues and were less likely to have antibiotic-resistant bacteria, but the researchers concluded the differences were not significant enough to have any meaningful health impact. If organic food truly is healthier — and it may be — the existing scientific literature cannot (yet?) support such claims, particularly as applied to organic foods across the board. There may be specific foods, however, for which organic production may make a difference (or for which organic production methods tend to correlate with other practices that produce positive results).

The bottom line is eat organic foods if you like. Just don’t believe there’s any scientific basis for claiming you will be healthier as a result. As the […]

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En Banc Petitions in D.C. Circuit Greenhouse Gas Litigation

Earlier this month, several of the parties challenging the Environmental Protection Agency’s decision to regulate greenhouse gases under the Clean Air Act filed petitions for panel rehearing or rehearing en banc in Coalition for Responsible Regulation v. EPA, in which the U.S. Court of Appeals for the D.C. Circuit turned away all of the state and industry challenges to the EPA’s rules. I summarized the court’s decision here, and provide greater background on the EPA’s regulations and associated policy issues here.

The en banc petitions stress the unusual magnitude and importance of the regulations at issue, as well they should, but that’s often not enough for en banc review. Nor are protestations that that the original panel muffed the merits (case in point), particularly where (as here) most of the issues could be resolved on traditional administrative law grounds. The industry argument that the panel erred in refusing to force the EPA to consider potential adaptation to climate change, for example, is a non-starter. Even if the panel got this question wrong (and I don’t believe it did), that’s not the sort of question that is worthy of en banc review.

There is one issue, however, that could well be en banc-worthy: the panel’s conclusion that industry petitioners lacked standing to challenge the EPA’s so-called “tailoring rule.” While the strict application of Article III standing requirements is nothing new on the D.C. Circuit, here the panel applied the standing rules to prevent the object of a government action from challenging the lawfulness of that action, on the grounds that the harm would not be redressable by a favorable ruling on the merits. Though a plausible reading of the relevant standing precedents, this is a holding that could insulate all manner of regulatory action from judicial […]

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Why Gasoline Prices Are Volatile

Andrew Morriss and Donald Boudreaux have an op-ed in today’s WSJ explaining why gasoline prices have become more volatile. The short version: Boutique fuel requirements have balkanized the gasoline market, magnifying the effects of local supply disruptions.

For most of the 20th century, the United States was a single market for gasoline. Today we have a series of fragmentary, regional markets thanks to dozens of regulatory requirements imposed by the federal Environmental Protection Agency (EPA) and state regulators. That’s a problem because each separate market is much more vulnerable than a national market to refinery outages, pipeline problems and other disruptions. . . .

The role of regulators in fuel formulation has become increasingly complex. The American Petroleum Institute today counts 17 different kinds of gasoline mandated across the country. This mandated fragmentation means that if a pipeline break cuts supplies in Phoenix, fuel from Tucson cannot be used to relieve the supply disruption because the two adjacent cities must use different blends under EPA rules.

To shift fuel supplies between these neighboring cities requires the EPA to waive all the obstructing regulatory requirements. Gaining permission takes precious time and money. Not surprisingly, one result is increased price volatility.

Another result: Since competition is a key source of falling gas prices, restricting competition by fragmenting markets reduces the market’s ability to lower prices.

While most of the fuel standards were adopted in the name of the environmental protection, many are actually the result of special interest pleading. Producers of various products, ethanol in particular, sought fuel content mandates or performance requirements that would benefit their particular product. (I detailed part of this history in “Clean Fuels, Dirty Air,” in Environmental Politics: Public Costs, Private Rewards (Greve & Smith eds. 1992).) Worse, some of the content requirements are irrelevant for new […]

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