The Volokh Conspiracy

Earlier this month President Obama asked the Environmental Protection Agency to shelve a proposal to tighten the National Ambient Air Quality Standard for ozone this year. The Administration was apparently concerned about the cost a tighter standard would impose, and the EPA is required to consider revising the standard in 2013 anyway. Does this mean metropolitan areas are off the hook for additional environmental controls? Nope. Even without a tighter standard, many metropolitan areas will have to adopt more stringent pollution controls in order to meet the revised ozone standard adopted by the Bush Administration in 2008, as EPA Administrator Lisa Jackson confirmed in House testimony yesterday. The WSJ reports:

Testifying before a House subcommittee, Ms. Jackson said her agency would enforce an ozone standard of 75 parts per billion, adopted by the EPA in 2008. Until now, the standard had been suspended because of the EPA’s intention to introduce a more stringent measure, and the 1997 standard of 84 parts per billion prevailed.

There are 52 areas where air quality fails to meet the 2008 standard, the EPA said in a memo to state officials. Among them are Baltimore, San Diego, Dallas-Fort Worth and parts of Los Angeles. Ms. Jackson said the EPA would enforce the standard in a “common-sense way” to minimize the burden on state and local governments.

In practical terms, this shows how the Obama Administration’s decision not to tighten the ozone standard this year will not have a significant environmental effect in the near- to medium- term. Those areas with the worst ozone pollution do not meet either standard, so such areas would be required to adopt more stringent regulations either way. As for areas that meet the 2008 standard but would fail to meet more stringent requirements, the compliance date for a revised standard would be years off anyway, so if a more stringent standard is adopted in 2013 as many expect, the practical effect will be small.

While the EPA now plans to enforce the 2008 standard, there is some question whether it will be the standard for long. Not only is a scheduled revision only two years away, but legal challenges against the rule by both environmentalist and industry groups are pending in federal court as well. Given the EPA’s poor record of defending Bush-era air quality rules, it’s certainly possible one of these challenges will succeed.

Terry Anderson of PERC argues that it’s time for a “Green Tea Party”: “a movement that brings environmental quality through economic prosperity.”

The GTP’s platform would be that only prosperity and incentives can drive environmental improvements. The first plank: Wealthier is healthier. From the U.S. to the former Soviet Union, data show that economic growth is necessary for environmental improvement, not its enemy. Such growth requires a strong private sector, not more federal spending and red tape. The second plank: Incentives matter. The GTP would use a carrot instead of the regulatory stick to improve environmental quality, and let energy markets and prices dictate energy sources. A replacement for fossil fuels will be found only when entrepreneurs can make a profit from cheaper, cleaner and more efficient energy.

Specific policies Anderson identifies that make economic and environmental sense a GTP could endorse include requiring federal land management agencies to turn a profit, expanded reliance on water markets, and the expansion of catch-share fisheries management.

UPDATE: Here’s PERC’s Green Tea Party site and the platform.

Two weeks ago, President Obama asked EPA Administrator Lisa Jackson to shelve plans to tighten the National Ambient Air Quality Standard for ozone, leaving any reconsideration of the current standard until 2013. This past week, the EPA announced it was delaying the planned release of proposed regulations to control greenhouse gas emissions from power plants under the Clean Air Act. This is the second time EPA has delayed publication of these rules.

Viewed together, these decisions suggest the Obama Administration is making a conscious effort to moderate its regulatory policy, particularly in the environmental area. If so, why would this be? Could it possibly make political sense for the Obama Administration to acquiesce to GOP attacks on environmental protection? After all, as Ann Carlson noted at Legal Planet, environmental protection remains popular,and polls suggest relatively few Americans believe environmental regulation costs jobs (though it can).

It is inconceivable that the Obama Administration believes that these moves will placate Tea Party opposition or win plaudits from across the aisle. But that’s not the point. Nor is aggregate popular opinion on these questions particularly relevant to the political calculus. Rather, as I noted in comments to Ann Carlson’s post, what matters are the views of marginal voters and, in particular, marginal voters in politically significant states. That is, the opinions of moderates and independents in Ohio, Pennsylvania and West Virginia matter more than the views of environmental activists in San Francisco or Washington, D.C.

Viewed in this light, the political rationale of these decisions is easier to understand. Insofar as these moves are politically inspired, it would appear the aim is to placate those potential constituencies in battleground states most sensitive to the costs of new and impending environmental regulations. Think coal and power company unions, small businesses in what remains of the industrial midwest, and moderate Democrats in state and local governments whose enthusiasm is essential for voter turnout. These sorts of groups are more likely to notice whether the Obama Administration appears to be moderating the EPA’s regulatory zeal or tightening the screws, and such issues may influence their votes.  There’s a reason Joe Manchin (D-WV) ran against environmental regulation, and the White House is certainly understands where proposed environmental rules would have the greatest economic effect.

None of this means that the Obama Administration’s decisions were politically driven — I have no deep inside sources — or that they are politically wise.  The ozone NAAQS decision was almost certainly political, but the latest decision may well have been influenced by other concerns.  But if the Obama Administration is deliberately trimming the EPA’s sails, the political calculus is easy to understand.

The New York Times tries to provide some perspective to the renewed debate over the economic effect of environmental regulation, and the effect of regulation on jobs in particular.  The story was prompted by President Obama’s decision to ask Environmental Protection Agency Administrator Lisa Jackson to withdraw a proposed revision of the National Ambient Air Quality Standard for ozone.  Business groups and many local government officials cheered the move; environmentalist groups were dismayed.

Part of the problem in evaluating the costs of regulation is that there have been few systematic studies of such costs after regulations are imposed.

“Regulations are put on the books and largely stay there unexamined,” said Michael Greenstone, an economist at the Massachusetts Institute of Technology. “This is part of the reason that these debates about regulations have a Groundhog’s Day quality to them.”

Mr. Greenstone has conducted one of the few studies that actually measure job losses related to environmental rules. In researching the amendments to the Clean Air Act that affected polluting plants from 1972 and 1987, he found that those companies lost almost 600,000 jobs compared with what would have happened without the regulations.

But Mr. Greenstone has also conducted research showing that clean air regulations have reduced infant mortality and increased housing prices, and indeed many economists argue that job losses should not be considered in isolation. They say the costs of regulations are dwarfed by the gains in lengthened lives, reduced hospitalizations and other health benefits, and by economic gains like the improvement to the real estate market.

The NYT story did not provide links to Prof. Greenstone’s research, so I added them above. For those interested in the subject, a third paper by Greenstone looks at the extent to which air quality improvements can be attributed to the federal Clean Air Act. Prof. Greenstone is, among other things, the former chief economist of President Obama’s Council of Economic Advisers.

The story closes with a quote from current Obama Administration “regulatory czar” Cass Sunstein, who’s in leave from the Harvard Law School.

“My view is that the Republican claim that ‘job-killing regulation’ is a redundancy is as ridiculous as the left-wing view that ‘job-killing regulation’ is an oxymoron,” said Cass Sunstein, head of the White House Office of Information and Regulatory Affairs. “Both are silly political claims that have no place in a serious discussion.”

I agree with Professor Sunstein that the debate over whether regulation kills or creates jobs is not very productive. As a general matter, when a firm is forced to spend money complying with environmental regulations, such expenditures are likely to take the place of more productive investments.  Some of these expenditures may benefit other firms, such as those which sell products or services that assist with compliance, but are still unlikely to offset the negative effects of the initial diversion.  As a consequence, whether or not there are net economic benefits from environmental regulation will usually depend on the magnitude and nature of the other benefits the regulation provides — benefits that may or may not translate into job creation. Even if an environmental regulation generates net economic benefits, this does not necessarily translate into increased employment.  But whatever the effect of regulation on jobs, and even assuming the effect could be predicted with any accuracy, this is only one factor to be weighed when considering the desirability of regulation.

UPDATE: Matt Kahn notes that Clean Air Act regulation is not uniform across the nation, and insofar as regulations adopted pursuant to that law have reduced employment in some parts of the country, this has been offset by greater job creation elsewhere.  Indeed, this differential effect is one reason why the Clean Air Act was amended to impose greater restrictions on “cleaner” areas, as B. Peter Pashigian documented in a 1985 paper.

Another interesting aspect of Clean Air Act regulation, relevant to President Obama’s recent decision, is that the economic consequences of tightening a NAAQS may be severe, but they are anything but immediate.  Once a new NAAQS is finalized, state and local governments have many years to develop plans to come into compliance, so no direct regulatory burden would have been imposed on private firms for many years.  Thus whatever the merits of withdrawing the NAAQS revision proposal, and deferring any tightening to 2013, it will not do much for the economy in 2011, except insofar as one believes the prospects of tighter environmental regulations in the future is a significant impediment to investment and job-creation in the present.

President Obama today told the U.S. Environmental Protection Agency to set aside plans to tighten the National Ambient Air Quality Standard for ground-level ozone (aka “smog”). The proposed tightening was fiercely opposed by business groups as well as state and local governments, as the latter are charged with developing plans to meet the standards. In addition to the anticipated costs of metting the new standards, opponents pointed out that the EPA is required to review its air quality standards every five years, and would have to review the standards in 2013. The ground-level ozone standard was last revised in 2008, but the Bush Administration did not tighten them as much as environmentalist groups had wanted.

The text of the  President’s statement released by the White House is below the jump.

Continue reading ‘White House Halts New Federal Smog Standards’ »

I reviewed Douglas Kysar’s Regulating from Nowhere: Environmental Law and the Search for Objectivity for the Spring 2011 issue of The New Atlantis.  Overall, I found Kysar’s book thoughtful, provocative, wide-ranging and well-written, but not persuasive. In many ways, I think Kysar pursues the wrong quarry, and ignores some of the deeper problems in contemporary environmental law. Nonetheless, the book presents many arguments worth considering and engaging.   Here is how the review concludes:

If Kysar’s ultimate concern is for a greater recognition of and reaching toward the environmental values he holds dear, his complaint should be less with CBA and utilitarian calculus than with the centralized regulatory structure in which they are used to impose one-size-fits-all policies. In selecting the wrong target, Kysar embarks on a journey to the wrong destination. Were we to take Kysar’s advice, we would no longer “regulate from nowhere,” but we would still regulate from nowhere good.

The full text of the review has just been made available online here.

Wind power provides substantial environmental benefits, not the least of which is that it produces electricity without emitting greenhouse gases or traditional air pollutants.  It can also be useful source of distributed power.  But (like anything else) it also has its drawbacks, such as its unsuitability for baseload power and (as some environmentalists are increasingly realizing) the threat it poses to birds.  The federal government estimates wind power kills almost one-half million birds per year — a number that will dramatically increase if wind power expands in accord with the federal government’s plans. Those areas best for wind production are often those areas that pose the greatest risk to birds.

Today’s Washington Post reports on a Fish & Wildlife Service investigation of the deaths of several golden eagles at a California wind farm.

Over nearly 30 years, none of the nation’s 500 wind farms, where 35,000 wind turbines operate mostly on private land, have been prosecuted for killing birds, although long-standing laws protect eagles and a host of migrating birds.

If the ongoing investigation by the Fish and Wildlife Service’s law enforcement division results in a prosecution at Pine Tree, it will be a first. The conservancy wants stronger regulations and penalties for the wind industry, but the government has so far responded only with voluntary guidelines.

The story also notes that the guidelines have been watered down to accommodate industry complaints. The LA Times has more here.

The Great Lakes states are concerned about the potential spread of Asian carp, an invasive species not native to North America, into the Great Lakes. They fear the carp could have significant negative ecological and economic consequences for the region. For the past few years, these states have sought (unsuccessfully) to obtain an injunction requiring the closure of locks that could help prevent the carp’s spread.

Yesterday, the U.S. Court of Appeals for the Seventh Circuit rejected their petition, largely on the grounds that various state and federal efforts to contain the carp are underway. Judge Wood’s opinion for the court in Michigan v. U.S. Army Corps of Engineers summarizes:

. This appeal requires us to consider . . . the environmental and economic harm posed by two invasive species of carp, commonly known as Asian carp, which have migrated up the Mississippi River and now are poised at the brink of this man-made path to the Great Lakes. The carp are voracious eaters that consume small organisms on which the entire food chain relies; they crowd out native species as they enter new environments; they reproduce at a high rate; they travel quickly and adapt readily; and they have a dangerous habit of jumping out of the water and harming people and property. . . .

. . . In our view, the plaintiffs presented enough evidence at this preliminary stage of the case to establish a good or perhaps even a substantial likelihood of harm – that is, a non-trivial chance that the carp will invade Lake Michigan in numbers great enough to constitute a public nuisance. If the invasion comes to pass, there is little doubt that the harm to the plaintiff states would be irreparable. That does not mean, however, that they are automatically entitled to injunctive relief. The defendants, in collaboration with a great number of agencies and experts from the state and federal governments, have mounted a full-scale effort to stop the carp from reaching the Great Lakes, and this group has promised that additional steps will be taken in the near future. This effort diminishes any role that equitable relief would otherwise play. Although this case does not involve the same kind of formal legal regime that caused the Supreme Court to find displacement of the courts’ commonlaw powers in American Electric Power, on the present state of the record we have something close to it. In light of the active regulatory efforts that are ongoing, we conclude that an interim injunction would only get in the way. We stress, however, that if the agencies slip into somnolence or if the record reveals new information at the permanent injunction stage, this conclusion can be revisited.

Most of the GOP’s Presidential hopefuls have been savage in their criticism of the Environmental Protection Agency (EPA). Indeed, some have called for the agency to be dismantled.  Could this possibly be a good idea?  I’m all for criticizing the inefficiency and ineffectiveness of federal environmental regulation — I’ve certainly done my share — but the agency is not about to disappear, no matter who is elected President, nor would simply closing the agency down be a good idea.

The NYT‘s latest “Room for Debate” poses the question: “What if Republicans Closed the EPA.” Here’s my contribution:

There’s plenty not to like about contemporary environmental regulation. Most of today’s regulatory infrastructure was erected decades ago, and it has not aged well. Federal laws designed to control the nation’s heaviest polluters and maintain regional air quality are a poor fit for the broader environmental problems of today. Yet opposing the Environmental Protection Agency, by itself, is not a serious environmental policy. If Republican candidates are serious about reducing regulatory burdens while maintaining the nation’s historic commitment to environmental conservation, they need to articulate an alternative environmental vision more consonant with conservative values.

What would an alternative environmental vision look like? It would have to marry traditional conservative commitments to property rights and limited government with a genuine concern for environmental conservation. It would embrace technological innovation and ecological entrepreneurship and comprehend that one-size-fits-all approaches rarely fit much of the country very well. It would recognize that the same federal government that enforces environmental protections often subsidizes and encourages the very environmental degradation that regulatory programs are designed to prevent. It would also understand that well-intentioned environmental regulations are often themselves an obstacle to environmental progress.

A good place to start would be targeting environmentally harmful subsidies, such as those for ethanol and polluting industries, and identifying regulatory requirements that penalize conservation and frustrate the development and deployment of cleaner technologies. Another useful step would be to create an ecological waiver process, through which states and localities could seek relief from prescriptive requirements. Such a process was essential to welfare reform and could facilitate meaningful environmental reforms as well.

Improving environmental quality does not require the maintenance of a massive centralized, regulatory bureaucracy in Washington, but restoring rationality to environmental policy is not as simple as shuttering the E.P.A.

Biodiversity loss may be a serious environmental problem (I certainly believe it is), but scientists have had a hard time figuring out how many species are disappearing and how fast. One difficulty is the lack of consensus on how many species there are in the first place. Approximately 1.2 million species have been identified, but conventional (and often poorly substantiated) estimates of the total number of extant species have ranged from 3 to 100 million species. But researchers may be closing in on a more reliable estimate. A new study in PLoS BIology estimates the number of species at approximately 8.7 million. As the Washington Post reports, the new study is getting positive reviews, as it represents the most rigorous effort to estimate species numbers based upon what is known about cataloged species to date. As a consequence, this estimate should displace some of the speculative (and unfounded) numbers that have been thrown around in the past.

Population growth and climate change demand increases in agricultural productivity — increases that can only be achieved through the use of modern biotechnology. Yet excessive and scientifically unjustified regulatory restrictions hamper the development of more productive crop strains, particularly where they are needed most.  So argues Penn State biology professor Nina Federoff in today’s NYT, and she’s right.

In 2010, crops modified by molecular methods were grown in 29 countries on more than 360 million acres. Of the 15.4 million farmers growing these crops, 90 percent are poor, with small operations. The reason farmers turn to genetically modified crops is simple: yields increase and costs decrease.

Myths about the dire effects of genetically modified foods on health and the environment abound, but they have not held up to scientific scrutiny. And, although many concerns have been expressed about the potential for unexpected consequences, the unexpected effects that have been observed so far have been benign. Contamination by carcinogenic fungal toxins, for example, is as much as 90 percent lower in insect-resistant genetically modified corn than in nonmodified corn. This is because the fungi that make the toxins follow insects boring into the plants. No insect holes, no fungi, no toxins.

Yet today we have only a handful of genetically modified crops, primarily soybeans, corn, canola and cotton. All are commodity crops mainly used for feed or fiber and all were developed by big biotech companies. Only big companies can muster the money necessary to navigate the regulatory thicket woven by the government’s three oversight agencies: the E.P.A., the Department of Agriculture and the Food and Drug Administration.

Conservatives are often criticized for adopting ideologically or politically motivated positions on scientific questions — and they should be. But the Right has no monopoly on the politicization of science. As the debate over agricultural biotechnology shows, progressives can be just as guilty, and the effects can be just as grave.

It has been clear for decades that the means through which a crop strain is developed has no bearing on the health or environmental risks such a crop could pose. The scientific consensus here is broader and more stable than on climate change and other contentious environmental questions. The National Academy of Sciences, British Royal Society and EU have all concluded that modern biotech techniques are no more dangerous than traditional crop modification methods. Nevertheless, due to progressive environmental activism and fear campaigns, crops developed with modern biotechnology are subject to greater regulatory scrutiny. As Federoff notes, a reactive precautionary stance may have been justified years ago when biotechnology was new, but there is no scientific justification for such a position today. Yet progressive environmentalists continue to oppose modern agricultural biotechnology — and the supposed defenders of scientific integrity have little to say about it.

UPDATE: Chris Mooney thinks I sideswiped him unfairly with the final link of this post.  I disagree, and have responded in the comments to his post.  My comment is reproduced below.

Chris –

I’m sorry you thought it was a sideswipe, but I think the charge was justified. I ran a search on your blog for “biotechnology” on your blog and little of substance comes up. While you acknowledged the problem of anti-science anti-biotech activism in your book, you’ve had very little to say about it since. Why is this a problem? Because the anti-scientific anti-biotech view has very real consequences. You may like to think that liberals are open to science on this issue, but why do we see no evidence of this in actual policy? Why are GMOs subject to greater regulatory scrutiny than their non-GMO equivalents? Why has no “liberal” administration done anything about this? Sure, the anti-Greenpeace activism hasn’t prompted a broad social movement, but it hasn’t had to. As the article to which I linked discusses, the current regulatory process adopts the precise anti-GMO bias that the NAS and its foreign equivalents have warned against. Given this fact, I think it’s fair to find your relative quiet on this issue rather conspicuous.

Does a decline in crop diversity threaten future food production? A report in the August 2011 National Geographic suggests so. The article, “Food Ark,” reports that the “extinction” of food varieties could be a real problem.

Food varieties extinction is happening all over the world—and it’s happening fast. In the United States an estimated 90 percent of our historic fruit and vegetable varieties have vanished. Of the 7,000 apple varieties that were grown in the 1800s, fewer than a hundred remain. . . . .

Why is this a problem? Because if disease or future climate change decimates one of the handful of plants and animals we’ve come to depend on to feed our growing planet, we might desperately need one of those varieties we’ve let go extinct.

But it’s actually not at all clear that available food varieties are dwindling at such a dramatic rate. As I’ve noted before here and here, the research of Paul Heald and Susannah Chapman suggests that available crop varieties are actually increasing. In the case of apples, for example, Heald and Chapman show that the number of varieties available to apple farmers today is nearly four times greater than in 1900.

Particularly misleading is this graphic, which purports to show “our dwindling food variety.” Based upon a 1983 study by the Rural Advancement Foundation International, it compares commercial seed house offerings from 1903 and varieties maintained in the National Seed Storage Laboratory eighty years later, finding a shocking 93 percent decline in available varieties. But this is not an apples-to-apples comparison. Had the study instead compared commercial seed offerings in 1903 with those available from contemporary seed catalogs it would have found no appreciable decline. In fact, that is the point of this Heald and Chapman study, which found contemporary seed catalogs offer just as many crop varieties as the RAFI study found in 1903.  Some varieties available in 1900 are no longer around, to be sure, and available varieties of some crops have declined while others have climbed, but the overall variety has not “dwindled” as National Geographic suggests.

What about the future? As the National Geographic author explains, it took centuries of careful selective breeding for farmers and breeders to develop crops and livestock breeds suited to various climates and regions. True enough. But the article gives little consideration to how modern biotechnology techniques have accelerated and honed this process. Developing new breeds and strains occurs with greater speed and precision than ever before. Modern biotechnology is no panacea, but combined with the actual trends in the availability of various crop varieties, it provides much reason for optimism, rather than gloom.

Yesterday afternoon I attended a lecture by Michael Greenstone, the 3M Professor of Environmental Economics and former chief economist of the Council of Economic Advisers during the first year of the Obama Administration, addressing the question, “Will Adaptation Save Us from Climate Change?” This lecture was the keynote address at a PERC workshop on “Human Adaptation to Climate Change” I’ve been attending this week.

Greenstone set the stage by observing that there are three possible approaches to the threat of climate change: 1) mitigation – reducing emissions of greenhouse gases; 2) adaptation – responding to climate change by seeking to ameliorate its negative effects, and 3) geoengineering – attempting to modify the climate in some way to offset the effects of increased greenhouse gas concentrations. The first of these is unlikely to happen in the near term, as the United States and other nations have shown themselves to be quite resistant to adopting meaningful mitigation measures. The third, whether or not it is viable or desirable, is generally not considered an acceptable approach geo-politically. As a consequence, he suggested, in all likelihood we will have to engage in some degree of adaptation to climate change.

In Greenstone’s view, the question is not whether or not human civilization will survive. It almost certainly will. Nonetheless, climate change could have substantial negative conseuqences. Rather, the relevant questions are how adaptation will occur over various time frames, the cost of such adaptation, and how effective adaptive responses will be. There is some research that has investigated the costs and potential of near-term response to some degree of climate change, but not nearly enough on longer term responses to climate change and its consequent environmental effects. Insights can be drawn, however, from other research that documents individual responses to changes in environmental conditions. For example, Greenstone co-authored a paper showing that some individuals respond to local air pollution levels by, among other things, purchasing medications that relieve some of the respiratory effects of higher pollution levels. Such adaptation may reduce the negative effects of pollution, but it still comes at a cost.

Adaptation takes many forms. Some adaptation to climate change would involve changes in infrastructure and the like, but much adaptation is likely to occur at the individual level. To take a simple example Greenstone used in his talk (based on this paper): on hotter days, people use more air conditioning. This matters because high temperatures tend to correlate with increased mortality. Therefore, were it not for air conditioning (and other means of adaptation), an increase in temperature would cause a greater increase in mortality. With air conditioning, the mortality increase is less, though energy use is greater.  This illustrates how individuals can alter their behavior to compensate for some of the consequences of higher temperatures, albeit at some cost.

In poorer, less-developed nations, such as India, on the other hand, the results are somewhat different. As Greenstone explained, compared to the United States, India has less adaptive capacity, so the mortality effects of warming would be greater – far greater. There is a lot of adaptive capacity in wealthy, industrialized nations, but not so much in poorer, less-developed nations. Moreover, the United States’ adaptive capacity has improved dramatically over the course of the past century. That is, the relationship between high temperatures and increased mortality in the United States has weakened over time as the nation has become wealthier and more technologically advanced, making it easier for individuals to adapt to temperature changes.

One possible response to Greenstone’s analysis is that if wealthier nations can adapt to climatic changes more readily than poorer nations, as much attention should be paid to making poorer nations wealthier – and improving their adaptive capacity – as to figuring out how to reduce global greenhouse gas emissions so as to mitigate the threat of climate change. From an economic standpoint, the costs of mitigation could be compared to the costs of adaptation, and if the costs of mitigation are greater, this would provide an economic justification for focusing on adaptation instead of mitigation – and some would certainly endorse this view. Indeed, many in developing nations embrace this view. In any event, even if mitigation policies are eventually adopted, there will need to be some degree of adaptation, some of which will be undertaken at the individual level.

James L. Huffman, former Dean of the Lewis & Clark Law School, examines the federal government’s flagging efforts to save the endangered spotted owl in the Pacific Northwest.

Despite a 90% cutback in harvesting on federal lands (which constitute 46% of Oregon and Washington combined), the population of spotted owls continues to decline, as do rural communities that once prospered across the Northwest. In some areas, spotted owls are vanishing at a rate of 9% per year, while on average the rate is 3%. . . .

The final Revised Recovery Plan, issued on June 30, calls for expanding protections for owls beyond the nearly six million acres currently set aside. Ironically, it also calls for the “removal”—i.e., shooting—of hundreds of barred owls, a larger and more adaptable rival of the spotted owl that competes for prey and nesting sites, and sometimes breeds with the spotted owl.

How much will it cost to implement this plan? The Fish and Wildlife Service says the species could be rejuvenated over the next 30 years at a cost of about $127 million. But that money will do little if anything to rejuvenate the depressed rural communities of the Northwest where still more timber land will be off limits to harvesting.

The key point is that the species could be rejuvenated, but that does not mean it will be. The owl’s continued decline has confounded many experts and there’s really bery little reason to think the new plans will outperform the old.

This is a pattern we see all too often with the Endangered Species Act — regulatory measures are imposed with uncertain if any ecological benefit. The ESA has sometimes kept species from falling over the brink of extinction, but has done precious little to achieve its stated goal of species recovery. Residents of depressed timber communities may want ESA reform because of the Act’s tremendous costs, but there’s also ample reason to want ESA reform because of its environmental ineffectiveness.

For some of my ideas about ESA reform, see here.

Yale’s Cultural Cognition Project, led by Dan Kahan, has a new working paper examining public perception of the risks posed by climate change: “The Tragedy of the Risk-Perception Commons: Culture Conflict, Rationality Conflict, and Climate Change.” The results are interesting, and perhaps a bit counter-intuitive — particularly the finding that those who are more scientifically literate are less likely to believe climate change poses a catastrophic threat. Here’s the abstract:

The conventional explanation for controversy over climate change emphasizes impediments to public understanding: Limited popular knowledge of science, the inability of ordinary citizens to assess technical information, and the resulting widespread use of unreliable cognitive heuristics to assess risk. A large survey of U.S. adults (N = 1540) found little support for this account. On the whole, the most scientifically literate and numerate subjects were slightly less likely, not more, to see climate change as a serious threat than the least scientifically literate and numerate ones. More importantly, greater scientific literacy and numeracy were associated with greater cultural polarization: Respondents predisposed by their values to dismiss climate change evidence became more dismissive, and those predisposed by their values to credit such evidence more concerned, as science literacy and numeracy increased. We suggest that this evidence reflects a conflict between two levels of rationality: The individual level, which is characterized by citizens’ effective use of their knowledge and reasoning capacities to form risk perceptions that express their cultural commitments; and the collective level, which is characterized by citizens’ failure to converge on the best available scientific evidence on how to promote their common welfare. Dispelling this, “tragedy of the risk-perception commons,” we argue, should be understood as the central aim of the science of science communication.

UPDATE: Steven Hayward comments here.

Yesterday, the federal district court in D.C. upheld the federal government’s decision to list polar bears as “threatened” under the Endangered Species Act against challenges from all sides. Environmentalist organizations argued the government should have instead listed the polar bear as “endangered” (a more protected status), while Alaska and industry groups argued the polar bear should not have been listed at all. As I expected, the Fish & Wildlife Service’s decision has been sustained. In In re Polar Bear Endangered Species Act Listing and § 4(d) Rule Litigation, Judge Sullivan turned away the challenges from both sides and deferred to the agency’s determination.

Holly Doremus analyzes the opinion here. I’ve posted the opening of the 116-page opinion below the fold.

Continue reading ‘District Court Upholds Polar Bear Listing’ »

The Supreme Court accepted cert on two more cases on Tuesday. One of these cases, Sackett v. EPA, could be quite significant for administrative law. The case arises out of an all-too-typical wetlands regulation dispute. The Sacketts own a lot in a residential subdivision upon which they planned to build a home. After they graded the lot, they were received an Administrative Compliance Order (ACO) from the EPA alleging they had violated the Clean Water Act by filling a wetland without a federal permit and ordering them to commence costly restoration, under threat of substantial penalties. The Sackett’s sought to challenge the ACO, believing that their land does not constitute jurisdictional wetlands subject to federal regulation, but the Clean Water Act does not provide any basis for doing so absent waiting for the EPA to commence a civil action. According to the EPA, what the Sacketts could have done is applied for the permit they believe they do not need, and if their permit application was denied, then challenge the EPA’s jurisdictional determination in federal court. But this is hardly an appealing option, particularly given the substantial costs the permitting process entails. So the Sacketts filed suit in federal court, but the district court and U.S. Court of Appeals for the Ninth Circuit agreed with the EPA that the ACO was not subject to a pre-enforcement challenge.

In agreeing to hear the case, the Supreme Court accepted cert on the following two questions: 1. May petitioners seek pre-enforcement judicial review of the administrative compliance order pursuant to the Administrative Procedure Act, 5 U. S. C. §704? 2. If not, does petitioners’ inability to seek pre-enforcement judicial review of the administrative compliance order violate their rights under the Due Process Clause? While this case focuses on the Clean Water Act’s ACO regime, the cert grant makes clear that it will have broader application to laws that employ similar enforcement mechanisms, including the Clean Air Act and Superfund. In particular, this case could have a significant influence on regulatory enforcement, where traditional notions of Due Process often get short shrift.

Richard Frank and Holly Doremus have more on Sackett at Legal Planet, as do the folks at the Pacific Legal Foundation who brought the case.

Most eyes have focused on the Supreme Court’s recent decisions in Wal-Mart v. Dukes and AEP v. Connecticut. Yet the Court has also continued to grant additional cases for next term. Among Monday’s grants was PPL Montana PLC v. Montana, the first (and thus far only) environmental case on the docket for OT 2011. It’s an interesting case concerning how to determine whether a river is “navigable,” which has implications for the scope of state public trust authority. Richard Frank previews the case here.

Today the U.S. Supreme Court held unanimously in American Electric Power v. Connecticut that the Clean Air Act displaces suits alleging global warming constitutes a public nuisance under federal common law. As I’ve discussed before (see posts here, here and here), this conclusion was hard to avoid once the Supreme Court held (erroneously in my view) that greenhouse gases are “pollutants” subject to Clean Air Act regulation in Massachusetts v. EPA.

Another interesting aspect of today’s opinion is that the Court apparently split 4-4 over whether the U.S. Court of Appeals for the Second Circuit had jurisdiction to hear this case in the first place. Justice Alito also wrote a separate concurrence, joined by Justice Thomas, making clear that he agreed with the Court only on the assumption that Massachusetts v. EPA interpreted the Clean Air Act correctly. [Why didn't Justice Scalia and Chief Justice Roberts join this opinion when they also dissented in Massachusetts? Perhaps because principles of stare decisis are strongest for questions of statutory interpretation and they have no interest in suggesting they would reconsider what constitutes a "pollutant" under the Act.]

I’ll have more to say on this opinion later today, once I’ve had time to digest it.

UPDATE: I’ve posted my initial thoughts here.

Sen. Tom Coburn (R-OK) forced a vote on eliminating an excise tax credit for ethanol. Something like this should be a no-brainer. Tax subsidies for ethanol are economically wasteful and environmentally destructive. Yet the vote failed, 59-40. This could have been a tough vote for Republicans, as some conservatives consider the repeal of tax credits tantamount to tax increases, but most Republicans did the right thing. Only a handful of farm state GOP Senators (and, inexplicably, Ohio’s Rob Portman) voted to preserve this pork. Senate Democrats, on the other hand, largely lined up with the corn lobby, against American consumers, taxpayers and environmental concerns. Senate majority leader Harry Reid actively whipped against the measure because of alleged procedural problems. For those interested, the full vote tally is here.

UPDATE: IBD on the vote:

How is it that the party loudly proclaiming how the government shouldn’t “pick winners and losers” could only manage to get 34 senators to oppose one of the most egregious examples of federal industrial policy?

On Tuesday, the Senate rejected an amendment sponsored by Tom Coburn, R-Okla., to end the $6 billion in tax subsidies plus the import tariffs that have given rise to Big Ethanol. The measure got just 40 votes, six of them from Democrats.

The picture doesn’t get much better at the GOP presidential candidate level, where for every critic of the subsidy there’s a Newt Gingrich and Mitt Romney extolling its virtues.

As for the opposition to repealing the ethanol tax subsidy from some conservative activists, such as Americans for Tax Reform’s Grover Norquist, NRO reports that GOP Senators were given a pass on supporting Coburn’s amendment if they also pledged to vote for a proposal by Senator Jim DeMint (R-SC) to offset the tax “increase” with a permanent estate tax repeal.

A new California law mandate that one-third of the state’s electricity come from “renewable” sources by 2020.  What will this mean in practice?  Robert Bryce explored some of the numbers in an NYT op-ed last week.

The state’s peak electricity demand is about 52,000 megawatts. Meeting the one-third target will require (if you oversimplify a bit) about 17,000 megawatts of renewable energy capacity. Let’s assume that California will get half of that capacity from solar and half from wind. Most of its large-scale solar electricity production will presumably come from projects like the $2 billion Ivanpah solar plant, which is now under construction in the Mojave Desert in southern California. When completed, Ivanpah, which aims to provide 370 megawatts of solar generation capacity, will cover 3,600 acres — about five and a half square miles.

The math is simple: to have 8,500 megawatts of solar capacity, California would need at least 23 projects the size of Ivanpah, covering about 129 square miles, an area more than five times as large as Manhattan. While there’s plenty of land in the Mojave, projects as big as Ivanpah raise environmental concerns. In April, the federal Bureau of Land Management ordered a halt to construction on part of the facility out of concern for the desert tortoise, which is protected under the Endangered Species Act.

Wind energy projects require even more land. The Roscoe wind farm in Texas, which has a capacity of 781.5 megawatts, covers about 154 square miles. Again, the math is straightforward: to have 8,500 megawatts of wind generation capacity, California would likely need to set aside an area equivalent to more than 70 Manhattans. Apart from the impact on the environment itself, few if any people could live on the land because of the noise (and the infrasound, which is inaudible to most humans but potentially harmful) produced by the turbines.

In short, while wind and solar power result in lower greenhouse gas emissions, they require large amounts of land — and that’s not even including the need for transmission lines, or the energy and material requirements of facility construction. In the case of wind turbines, it takes approximately 50 tons of steel to build a single megawatt of capacity. Yet a single megawatt of gas turbine capacity can be built with less than one-quarter ton.

Renewable energy sources have their place, but they should not be oversold. Wind and solar may reduce greenhouse gas emissions, but at the expense of other environmental impacts — impacts that should also be considered.

Several manufacturers of disposable plastic bags have filed suit against reusable bag maker ChicoBag for false and misleading claims about the environmental superiority of its reusable bags over disposable bags. The complaint claims that ChicoBag’s advertising and promotional materials violate the federal Lanham Act and the South Carolina Unfair Trade Practices Act. According to the complaining bag makers — Hilex Poly Co., Superbag Co. and Advance Polybag Inc. — they have been harmed by ChicoBag’s exaggerated claims about their products. Among other things, ChicoBag created the “BagMonster” to symbolize the number of disposable bags used by the average American, and has also launched this site about the suit.

There appears to be no dispute that ChicoBag made some incorrect or poorly substantiated claims. A company website acknowledges that it had relied upon some out-of-date sources, and has since updated and documented the claims made on its “Learn the Facts” page and elsewhere. This has not stopped the suit, however. Here’s more from the New York Times, San Francisco Chronicle, and Chico News & Review.

The context of this dispute is a broader debate about the merits of disposable products. ChicoBag may exaggerate the threat posed by the accumulation of solid waste, but there are other environmental (and even economic) reasons one may prefer reusable bags. The ChicoBag itself is a handy little product, even if it won’t save the earth.

As this litigation proceeds it will be interesting to see whether ChicoBag mounts a First Amendment defense. The company’s claims are as much about spreading an environmental message as they are promoting a product — and public debate over such questions would seem to be worth constitutional protection, even if economically motivated claims about a specific product are not. Somewhat ironically, one of the last companies to make this argument, Nike Inc., did so against environmentalist and human right activist attacks. That case went to the U.S. Supreme Court, but the justices punted in Nike v. Kasky. Perhaps Hilex Poly v. ChicoBag will provide the Court with an opportunity to revisit this issue and determine when a company’s commercial claims end and participation in public debate begins.

At a recent press conference touting House GOP plans to reduce regulatory burdens on business, members of Congress expressed dismay that the Environmental Protection Agency may tighten the National Ambient Air Quality Standard for ozone (aka urban smog) without considering the economic costs. Rep. Vicki Hartzler (R-Mo) remarked:

I received this week a letter from the EPA regarding a letter I’ve written them about some of their rules and they wrote here, quote, “Thus, the agency is prohibited from considering costs in setting these standards.” Now in business we do a cost benefit analysis before we make policy changes. Washington should as well.

Rep. Hartzler is right to be concerned about the consequences of tightening the ozone NAAQS any further, but the EPA can’t be faulted for not considering costs. As EPA Assistant Administrator Gina McCarthy explained in a letter to Rep. Hartzler:

Under the Clean Air Act, decisions regarding the National Ambient Air Quality Standards (NAAQS) must be based solely on an evaluation of the scientific evidence as it pertains to health and environmental effects. Thus, the agency is prohibited from considering costs in setting the NAAQS. But cost can be – and is – considered in developing the control strategies to meet the standards (i.e. during the implementation phase).

McCarthy is correct. The EPA has been prohibited from considering costs when establishing NAAQS for the past three decades. The U.S. Court of Appeals for the D.C. Circuit first interpreted the Clean Air Act to preclude such cost consideration in Lead Industries Association v. EPA in 1980, and the Supreme Court reaffirmed this interpretation of the Act in Whitman v. American Trucking Associations in 2001. As noted regulatory zealot Justice Scalia explained for a nearly unanimous court:

Section 109(b)(1) instructs the EPA to set primary ambient air quality standards “the attainment and maintenance of which … are requisite to protect the public health” with “an adequate margin of safety.” 42 U.S.C. § 7409(b)(1). Were it not for the hundreds of pages of briefing respondents have submitted on the issue, one would have thought it fairly clear that this text does not permit the EPA to consider costs in setting the standards. The language, as one scholar has noted, “is absolute.” D. Currie, Air Pollution: Federal Law and Analysis 4—15 (1981). The EPA, “based on” the information about health effects contained in the technical “criteria” documents compiled under §108(a)(2), 42 U.S.C. § 7408(a)(2), is to identify the maximum airborne concentration of a pollutant that the public health can tolerate, decrease the concentration to provide an “adequate” margin of safety, and set the standard at that level. Nowhere are the costs of achieving such a standard made part of that initial calculation.

One may quarrel with Justice Scalia’s interpretation of the Clean Air Act — I, for one, did some work for parties advocating a different interpretation in this litigation — but it is the law of the land, and the EPA is not to be faulted for following the law. If members of Congress do not like this, they have but one solution: Amending the Act.

This is not an isolated example. The EPA is frequently attacked for doing what they are required to do by existing federal statutes or judicial interpretations thereof. Numerous members of Congress and outside groups have accused the EPA of a “power grab” for proposing to regulate greenhouse gas emissions under the Clean Air Act. The EPA’s GHG regulations will be quite costly and extensive, while producing minimal environmental benefits (as I detail here). Yet such regulation is clearly authorized, if not required, by the Supreme Court’s decision in Massachusetts v. EPA.

Senator Sherrod Brown (D-OH) wrote the EPA in February urging it to “reconsider” the regulation of GHG emissions from utilities and other large stationary sources under the Clean Air Act. Senator Brown may have avoided the inflammatory rhetoric of his Republican colleagues, but his error was the same. Given the EPA’s conclusion that GHG emissions contribute to global warming that may be reasonably anticipated to threaten health or welfare, it has no choice but to impose the regulatory measures to which Senator Brown objects. Here again, there are plenty of reasons to oppose the EPA’s initiatives, but the EPA is not to blame. Rather, the Agency is doing what the Clean Air Act (as interpreted by the courts) requires.

If members of Congress disapprove of the EPA’s emission-control initiatives, they need to take responsibility for the laws on the books, and not scapegoat the EPA. However overzealous the EPA may be sometimes, most of its recent Clean Air Act initiatives are plainly authorized, if not required, under federal law. Indeed if the agency is to be faulted, it is for rewriting the Act to allow for less expansive regulation than the statutory text clearly requires. It was Congress that delegated expansive regulatory authority to the EPA, and Congress that enacted provisions making some regulatory initiatives obligatory. If members of Congress don’t like that, it is up to Congress to fix it.

I share much of co-blogger Jonathan Adler’s skepticism about the precautionary principle. If consistently applied, the principle actually counsels against its own adoption. As usually defined by its proponents, the precautionary principle states that:

When an activity raises threats of harm to human health or the environment, precautionary measures should be taken even if some cause and effect relationships are not fully established scientifically.

In this context the proponent of an activity, rather than the public, should bear the burden of proof.

Incorporating the precautionary principle into public policy is itself “an activity [that] raises threats of harm to human health or the environment.” Adherence to the principle might prevent or retard the adoption of new technologies and policies that could save many lives. For example, application of the precautionary principle to prevent the use of genetically modified foods may cause mass starvation in Africa. The precautionary principle could also prevent or slow down policies that increase economic growth, which might also cost many lives. If the principle had been in force in the past, it probably would have prevented or at least greatly retarded the spread of such technologies as railroads, airplanes, and printing presses. Trains and planes pose clear threats to health. And the printing press can be used to spread dangerous ideas that promote violence and undermine the social order, thereby endangering both health and the environment.

Since it is the “proponent of an activity” that “should bear the burden of proof” under the precautionary principle, the principle counsels against its own adoption unless and until its advocates can prove that it won’t cause “harm to human health or the environment” in any of the above ways. Moreover, they must effectively address even those possible “threats” that “are not fully established scientifically.” Advocates of the principle haven’t even come close to meeting that burden of proof.

None of this means that there aren’t genuine environmental problems, some of which require regulatory solutions. It merely suggests that the precautionary principle is a poor guide to deciding how to address these and other dangers.

I discussed some other shortcomings of the precautionary principle and its application in this post.

The American has posted an essay of mine on the precautionary principle, “The Problems with Precaution: A Principle without Principle.” The underlying paper was prepared for a conference on pesticide regulation at the American Enterprise Institute and was included in an AEI book, Crop Chemophobia: Will Precaution Kill the Green Revolution?. The essay begins:

It’s better to be safe than sorry. We all accept this as a commonsense maxim. But can it also guide public policy? Advocates of the precautionary principle think so, and argue that formalizing a more “precautionary” approach to public health and environmental protection will better safeguard human well-being and the world around us. If only it were that easy.

Simply put, the precautionary principle is not a sound basis for public policy. At the broadest level of generality, the principle is unobjectionable, but it provides no meaningful guidance to pressing policy questions. In a public policy context, “better safe than sorry” is a fairly vacuous instruction. Taken literally, the precautionary principle is either wholly arbitrary or incoherent. In its stronger formulations, the principle actually has the potential to do harm.

Efforts to operationalize the precautionary principle into public law will do little to enhance the protection of public health and the environment. The precautionary principle could even do more harm than good. Efforts to impose the principle through regulatory policy inevitably accommodate competing concerns or become a Trojan horse for other ideological crusades. When selectively applied to politically disfavored technologies and conduct, the precautionary principle is a barrier to technological development and economic growth.

It is often sound policy to adopt precautionary measures in the face of uncertain or not wholly known health and environmental risks. Many existing environmental regulations adopt such an approach. Yet a broader application of the precautionary principle is not warranted, and may actually undermine the goal its proponents claim to advance. In short, it could leave us more sorry and even less safe.