In the latest chapter of California’s water wars between endangered species protection and agricultural interests, the Ninth Circuit held in San Luis & Delta-Mendota Water Authority v. Jewell that the continued operation of the Central Valley Project and State Water Project was leading to jeopardy of the threatened delta smelt and its critical habitat in the San Joaquin BaySacramento Delta. The court’s decision will lead to substantial cuts in water delivery to the Central Valley of California, which is the most agriculturally productive area of the United States, to protect the delta smelt and force irrigation districts to adopt water conservation measures. This Note argues that procrastination acts as a significant behavioral barrier to effective environmental decision making. To prove this, this Note compares how irrigation districts in the Central Valley responded to three different conservation components of the groundbreaking California Water Conservation Act of 2009: the adoption of volumetric water pricing, investment in efficient irrigation technology, and mitigation measures against anthropogenic climate change. The results of the analysis provide strong evidence that those irrigation districts that have senior water rights are more likely to have inefficient irrigation systems and slower adoption of volumetric pricing than their junior counterparts. However, both junior and senior irrigation districts show procrastination in planning for the detrimental effects of climate change. California must address the conservation of endangered species and the continued economic viability of the Central Valley against the backdrop of an uncertain future of water availability. Given the demonstrated tendency
{"title":"On Fish and Farms: The Future of Water in California's Central Valley after San Luis & Delta-Mendota Water Authority v. Jewell","authors":"S. A. Panda","doi":"10.15779/Z38TV9H","DOIUrl":"https://doi.org/10.15779/Z38TV9H","url":null,"abstract":"In the latest chapter of California’s water wars between endangered species protection and agricultural interests, the Ninth Circuit held in San Luis & Delta-Mendota Water Authority v. Jewell that the continued operation of the Central Valley Project and State Water Project was leading to jeopardy of the threatened delta smelt and its critical habitat in the San Joaquin BaySacramento Delta. The court’s decision will lead to substantial cuts in water delivery to the Central Valley of California, which is the most agriculturally productive area of the United States, to protect the delta smelt and force irrigation districts to adopt water conservation measures. This Note argues that procrastination acts as a significant behavioral barrier to effective environmental decision making. To prove this, this Note compares how irrigation districts in the Central Valley responded to three different conservation components of the groundbreaking California Water Conservation Act of 2009: the adoption of volumetric water pricing, investment in efficient irrigation technology, and mitigation measures against anthropogenic climate change. The results of the analysis provide strong evidence that those irrigation districts that have senior water rights are more likely to have inefficient irrigation systems and slower adoption of volumetric pricing than their junior counterparts. However, both junior and senior irrigation districts show procrastination in planning for the detrimental effects of climate change. California must address the conservation of endangered species and the continued economic viability of the Central Valley against the backdrop of an uncertain future of water availability. Given the demonstrated tendency","PeriodicalId":45532,"journal":{"name":"Ecology Law Quarterly","volume":"42 1","pages":"397"},"PeriodicalIF":0.0,"publicationDate":"2015-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67562355","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Renewable energy is being deployed throughout the country to reduce air pollution and greenhouse gases. Reliance on increasing amounts of renewable energy, however, may lead to significant unanticipated increases in pollution because of the likelihood of fossil fuel facilities starting, stopping, and running more often to back up renewable resources. Estimates show that these emissions increases can drastically undercut the potential emission benefits of increased renewable penetration. To date, this changing role of fossil fuel facilities has not been thoughtfully evaluated in Clean Air Act permitting decisions for new and modified sources, even though the Act requires consideration of all methods to reduce air emissions. This Article describes why the Clean Air Act requires permitting authorities to fully evaluate the changing role of utilities in permitting decisions. This Article further describes why this evaluation should necessarily consider all available methods for reducing backup emissions, which includes energy storage and renewable energy resources. Consideration of energy storage or renewable energy to minimize ancillary emissions is consistent with the definition of Best Available Control Technology, and does not lead to a redefinition of the source.
{"title":"Controlling Ancillary Emissions Under the Clean Air Act: Consideration of Energy Storage as Best Available Control Technology","authors":"D. N. Behles","doi":"10.15779/Z38D873","DOIUrl":"https://doi.org/10.15779/Z38D873","url":null,"abstract":"Renewable energy is being deployed throughout the country to reduce air pollution and greenhouse gases. Reliance on increasing amounts of renewable energy, however, may lead to significant unanticipated increases in pollution because of the likelihood of fossil fuel facilities starting, stopping, and running more often to back up renewable resources. Estimates show that these emissions increases can drastically undercut the potential emission benefits of increased renewable penetration. To date, this changing role of fossil fuel facilities has not been thoughtfully evaluated in Clean Air Act permitting decisions for new and modified sources, even though the Act requires consideration of all methods to reduce air emissions. This Article describes why the Clean Air Act requires permitting authorities to fully evaluate the changing role of utilities in permitting decisions. This Article further describes why this evaluation should necessarily consider all available methods for reducing backup emissions, which includes energy storage and renewable energy resources. Consideration of energy storage or renewable energy to minimize ancillary emissions is consistent with the definition of Best Available Control Technology, and does not lead to a redefinition of the source.","PeriodicalId":45532,"journal":{"name":"Ecology Law Quarterly","volume":"42 1","pages":"573"},"PeriodicalIF":0.0,"publicationDate":"2015-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67456760","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In the absence of meaningful state-level solutions, there is a pressing need for federal action to address regional and global environmental issues like ozone pollution and climate change. Answering this call, the Environmental Protection Agency has recently promulgated aggressive regulations under the Clean Air Act. These rules entail federal reach into traditional areas of state authority, particularly in the energy sector, and the Supreme Court has indicated that it might tolerate such strong-handed federal control where states have been shirking their statutory responsibilities. However, in light of the legal shift towards federalization of energy regulation, this Note cautions against initial federal regulations that dramatically constrain states’ discretion in electricity and environmental planning. Such an approach would constitute an abrupt shift from state to federal jurisdiction over aspects of the electricity grid. Because states still have an important role in ensuring electricity reliability and affordability, this Note proposes that federal agencies, when occupying areas of traditional state control for the first time, promulgate rules and standards that still preserve much of states’ regulatory flexibility. Then, in subsequent regulations, federal agencies can expand their reach by setting more stringent standards and limiting state options for compliance. This will allow for more enduring and effective federal regulation and enable both states and the federal government to ensure a clean, affordable, and reliable electricity grid.
{"title":"Slow & Steady: A Gradual Approach to Federalization of Grid Regulation","authors":"Purba Mukerjee","doi":"10.15779/Z383588","DOIUrl":"https://doi.org/10.15779/Z383588","url":null,"abstract":"In the absence of meaningful state-level solutions, there is a pressing need for federal action to address regional and global environmental issues like ozone pollution and climate change. Answering this call, the Environmental Protection Agency has recently promulgated aggressive regulations under the Clean Air Act. These rules entail federal reach into traditional areas of state authority, particularly in the energy sector, and the Supreme Court has indicated that it might tolerate such strong-handed federal control where states have been shirking their statutory responsibilities. However, in light of the legal shift towards federalization of energy regulation, this Note cautions against initial federal regulations that dramatically constrain states’ discretion in electricity and environmental planning. Such an approach would constitute an abrupt shift from state to federal jurisdiction over aspects of the electricity grid. Because states still have an important role in ensuring electricity reliability and affordability, this Note proposes that federal agencies, when occupying areas of traditional state control for the first time, promulgate rules and standards that still preserve much of states’ regulatory flexibility. Then, in subsequent regulations, federal agencies can expand their reach by setting more stringent standards and limiting state options for compliance. This will allow for more enduring and effective federal regulation and enable both states and the federal government to ensure a clean, affordable, and reliable electricity grid.","PeriodicalId":45532,"journal":{"name":"Ecology Law Quarterly","volume":"42 1","pages":"347"},"PeriodicalIF":0.0,"publicationDate":"2015-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67389669","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In White Stallion Energy Center, LLC v. Environmental Protection Agency, the D.C. Circuit upheld the long-delayed Utility Maximum Achievable Control Technology rule against allegations that the U.S. Environmental Protection Agency had impermissibly failed to consider costs before deciding that regulating hazardous air pollutants, including mercury, from power plants was “appropriate and necessary.” The court held that the Clean Air Act did not require the Environmental Protection Agency to consider costs, but executive orders on centralized regulatory review require that all new and proposed rules pass a cost-benefit analysis before taking effect. This Note examines the intertwined histories of environmental regulation and centralized regulatory review, which show that regulatory review began as a deregulatory project in response to industry complaints about environmental regulation and only later was rebranded as an objective tool for effective regulation. This Note surveys criticisms of the Office of Information and Regulatory Affairs, the agency responsible for vetting cost-benefit analyses of new rules, and concludes by exploring whether the Office of Information and Regulatory Affairs is necessary, and what reforms might be desirable.
{"title":"Common Nonsense: Who's Regulating the Regulators?","authors":"Molly Coyne","doi":"10.15779/Z38M58F","DOIUrl":"https://doi.org/10.15779/Z38M58F","url":null,"abstract":"In White Stallion Energy Center, LLC v. Environmental Protection Agency, the D.C. Circuit upheld the long-delayed Utility Maximum Achievable Control Technology rule against allegations that the U.S. Environmental Protection Agency had impermissibly failed to consider costs before deciding that regulating hazardous air pollutants, including mercury, from power plants was “appropriate and necessary.” The court held that the Clean Air Act did not require the Environmental Protection Agency to consider costs, but executive orders on centralized regulatory review require that all new and proposed rules pass a cost-benefit analysis before taking effect. This Note examines the intertwined histories of environmental regulation and centralized regulatory review, which show that regulatory review began as a deregulatory project in response to industry complaints about environmental regulation and only later was rebranded as an objective tool for effective regulation. This Note surveys criticisms of the Office of Information and Regulatory Affairs, the agency responsible for vetting cost-benefit analyses of new rules, and concludes by exploring whether the Office of Information and Regulatory Affairs is necessary, and what reforms might be desirable.","PeriodicalId":45532,"journal":{"name":"Ecology Law Quarterly","volume":"42 1","pages":"209"},"PeriodicalIF":0.0,"publicationDate":"2015-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67503845","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Public Health Takes a Major Hit: Natural Resources Defense Council v. U.S. Food & Drug Administration","authors":"Sabrina Eshaghi","doi":"10.15779/Z38XS1G","DOIUrl":"https://doi.org/10.15779/Z38XS1G","url":null,"abstract":"","PeriodicalId":45532,"journal":{"name":"Ecology Law Quarterly","volume":"42 1","pages":"541"},"PeriodicalIF":0.0,"publicationDate":"2015-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67588699","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
With Congress in a state of perennial gridlock, California has taken action in the fight against global warming and made notable progress in reducing its greenhouse gas emissions. Since the transportation sector is California’s single largest source of greenhouse gas emissions, the state designed the Low Carbon Fuel Standard to measure and reduce greenhouse gas emissions from transportation fuels. Trade groups, unhappy with this move, challenged the Low Carbon Fuel Standard on dormant Commerce Clause grounds. The district court found the Low Carbon Fuel Standard unconstitutional, but the court of appeals reversed, allowing the regulations to take effect. This Note explores the reasons for these opposite outcomes. It argues that judges’ values play an important role in judicial decision making in general, and in dormant Commerce Clause inquiries in particular. As judges have different values, this leads to inconsistent and unclear dormant Commerce Clause case law. To address this problem, judges should employ deference in these cases, focus dormant Commerce Clause inquiries on whether the challenged statute or regulation discriminates in practical effect, and require evidence of actual discrimination.
{"title":"Looking Beneath the Surface of Rocky Mountain Farmers Union and Dormant Commerce Clause Challenges to State Environmental Efforts","authors":"Stephanie Postal","doi":"10.15779/Z38K87T","DOIUrl":"https://doi.org/10.15779/Z38K87T","url":null,"abstract":"With Congress in a state of perennial gridlock, California has taken action in the fight against global warming and made notable progress in reducing its greenhouse gas emissions. Since the transportation sector is California’s single largest source of greenhouse gas emissions, the state designed the Low Carbon Fuel Standard to measure and reduce greenhouse gas emissions from transportation fuels. Trade groups, unhappy with this move, challenged the Low Carbon Fuel Standard on dormant Commerce Clause grounds. The district court found the Low Carbon Fuel Standard unconstitutional, but the court of appeals reversed, allowing the regulations to take effect. This Note explores the reasons for these opposite outcomes. It argues that judges’ values play an important role in judicial decision making in general, and in dormant Commerce Clause inquiries in particular. As judges have different values, this leads to inconsistent and unclear dormant Commerce Clause case law. To address this problem, judges should employ deference in these cases, focus dormant Commerce Clause inquiries on whether the challenged statute or regulation discriminates in practical effect, and require evidence of actual discrimination.","PeriodicalId":45532,"journal":{"name":"Ecology Law Quarterly","volume":"42 1","pages":"459"},"PeriodicalIF":0.0,"publicationDate":"2015-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67495144","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In 1988, the Massachusetts legislature established the Massachusetts Environmental Trust to administer Boston Harbor pollution settlement funds. Since that time, the Massachusetts Environmental Trust has emerged as a national model for innovative management and distribution of environmental settlement funds. This Article presents a history and analysis of the Trust based on personal accounts by Massachusetts Environmental Trust insiders and archival records. The analysis exposes significant flaws in environmental settlement practices. The settlement process is unpredictable and opaque. The settling parties often lack the expertise needed to apply settlement funds effectively. Yet, they fail to consult, involve, or inform those who could best assist in that effort—affected communities and environmental experts. Settlement terms frequently value punishment and deterrence over environmental benefit. Even when settlements seek to address environmental damage, they define that damage too narrowly. As a result, the funds often go to short-term, small-scale, or even unrelated projects while much of the damage that was the subject of the settlement remains unaddressed. The Massachusetts Environmental Trust provides an environmentcentered model designed to enhance predictability, transparency, participation, and expanded use of settlement funds. The Massachusetts Environmental Trust’s experience demonstrates that an independent third party with environmental expertise and community knowledge, contacts, and reputation
{"title":"The Massachusetts Environmental Trust","authors":"Charles H. W. Foster, Frances H. Foster","doi":"10.15779/Z38KC39","DOIUrl":"https://doi.org/10.15779/Z38KC39","url":null,"abstract":"In 1988, the Massachusetts legislature established the Massachusetts Environmental Trust to administer Boston Harbor pollution settlement funds. Since that time, the Massachusetts Environmental Trust has emerged as a national model for innovative management and distribution of environmental settlement funds. This Article presents a history and analysis of the Trust based on personal accounts by Massachusetts Environmental Trust insiders and archival records. The analysis exposes significant flaws in environmental settlement practices. The settlement process is unpredictable and opaque. The settling parties often lack the expertise needed to apply settlement funds effectively. Yet, they fail to consult, involve, or inform those who could best assist in that effort—affected communities and environmental experts. Settlement terms frequently value punishment and deterrence over environmental benefit. Even when settlements seek to address environmental damage, they define that damage too narrowly. As a result, the funds often go to short-term, small-scale, or even unrelated projects while much of the damage that was the subject of the settlement remains unaddressed. The Massachusetts Environmental Trust provides an environmentcentered model designed to enhance predictability, transparency, participation, and expanded use of settlement funds. The Massachusetts Environmental Trust’s experience demonstrates that an independent third party with environmental expertise and community knowledge, contacts, and reputation","PeriodicalId":45532,"journal":{"name":"Ecology Law Quarterly","volume":"41 1","pages":"751"},"PeriodicalIF":0.0,"publicationDate":"2015-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67495511","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This Article examines the proposition that the Roberts Court has an unusually strong pro-business slant through the lens of the Court’s certiorari process. The Article uses data from the grant or denial of certiorari petitions filed in environmental cases over a sixteen-year period in both the Ninth and District of Columbia Circuits, selected because each court hears a large number of environmental cases. The recent record in the Ninth Circuit, where environmentalists win below only to lose in the high court, or lose below and subsequently have their petitions denied, is quite different from that in the D.C. Circuit. In the D.C. Circuit, during the same period, the high court has not reversed a single positive environmental decision issued below. In fact, over the same period, there is no instance of the Court granting a petition where environmentalists won in the D.C. Circuit. This Article explores the proposition that the Ninth Circuit has become a unique and useful foil for the Court’s conservative wing to advance its pro-business agenda through the manipulation of the certiorari process. The Article discusses various studies of the Roberts Court, which show that its decisions display a strong business bias, that the Court shapes its agenda through the certiorari process, and that the personal policy objectives and preferences of individual Justices play a critical
{"title":"How the Supreme Court Uses the Certiorari Process in the Ninth Circuit to Further Its Pro-Business Agenda: A Strange Pas de Deux with an Unfortunate Coda","authors":"Hope M. Babcock","doi":"10.15779/Z38TV83","DOIUrl":"https://doi.org/10.15779/Z38TV83","url":null,"abstract":"This Article examines the proposition that the Roberts Court has an unusually strong pro-business slant through the lens of the Court’s certiorari process. The Article uses data from the grant or denial of certiorari petitions filed in environmental cases over a sixteen-year period in both the Ninth and District of Columbia Circuits, selected because each court hears a large number of environmental cases. The recent record in the Ninth Circuit, where environmentalists win below only to lose in the high court, or lose below and subsequently have their petitions denied, is quite different from that in the D.C. Circuit. In the D.C. Circuit, during the same period, the high court has not reversed a single positive environmental decision issued below. In fact, over the same period, there is no instance of the Court granting a petition where environmentalists won in the D.C. Circuit. This Article explores the proposition that the Ninth Circuit has become a unique and useful foil for the Court’s conservative wing to advance its pro-business agenda through the manipulation of the certiorari process. The Article discusses various studies of the Roberts Court, which show that its decisions display a strong business bias, that the Court shapes its agenda through the certiorari process, and that the personal policy objectives and preferences of individual Justices play a critical","PeriodicalId":45532,"journal":{"name":"Ecology Law Quarterly","volume":"41 1","pages":"653"},"PeriodicalIF":0.0,"publicationDate":"2015-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67562298","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Over the past five years, the process of hydraulic fracturing, or ―fracking,‖ has become a hot-button topic in the media and the courtroom. As more information about fracking becomes publicly available, serious questions have arisen about the environmental and health hazards it poses. In light of these risks, local governments have been some of the most vocal opponents of the process, many of them going so far as to completely ban fracking within their boundaries. By contrast, several state governments have embraced the oil and gas industry in hopes of capitalizing on the revenue generated from fracking. Now both groups have turned to the courts to answer the question: Who gets to regulate fracking? Until fairly recently, both the litigation and its concomitant scholarship focused on the concept of preemption. State courts have been tasked with defining what kind of relationship their state has with its local governments and the bounds by which that relationship is confined. Some have ruled in favor of total state preemption, striking down any local bans or regulations deemed more stringent than their statewide counterparts. However, in Robinson Township v. Commonwealth, the Pennsylvania Supreme Court became the first to overturn key provisions of a state regulatory regime that claimed to preempt previously enacted local fracking bans. The court‘s decision was not based on arguments of preemption, but instead focused on the environmental rights afforded to Pennsylvania‘s citizens through the state constitution; the statewide uniform regulatory regime violated those rights and potentially placed the burdens of the industry on some communities far more than others.
{"title":"It's a Fracking Conundrum: Environmental Justice and the Battle to Regulate Hydraulic Fracturing","authors":"Elena M Pacheco","doi":"10.15779/Z38ZP1P","DOIUrl":"https://doi.org/10.15779/Z38ZP1P","url":null,"abstract":"Over the past five years, the process of hydraulic fracturing, or ―fracking,‖ has become a hot-button topic in the media and the courtroom. As more information about fracking becomes publicly available, serious questions have arisen about the environmental and health hazards it poses. In light of these risks, local governments have been some of the most vocal opponents of the process, many of them going so far as to completely ban fracking within their boundaries. By contrast, several state governments have embraced the oil and gas industry in hopes of capitalizing on the revenue generated from fracking. Now both groups have turned to the courts to answer the question: Who gets to regulate fracking? Until fairly recently, both the litigation and its concomitant scholarship focused on the concept of preemption. State courts have been tasked with defining what kind of relationship their state has with its local governments and the bounds by which that relationship is confined. Some have ruled in favor of total state preemption, striking down any local bans or regulations deemed more stringent than their statewide counterparts. However, in Robinson Township v. Commonwealth, the Pennsylvania Supreme Court became the first to overturn key provisions of a state regulatory regime that claimed to preempt previously enacted local fracking bans. The court‘s decision was not based on arguments of preemption, but instead focused on the environmental rights afforded to Pennsylvania‘s citizens through the state constitution; the statewide uniform regulatory regime violated those rights and potentially placed the burdens of the industry on some communities far more than others.","PeriodicalId":45532,"journal":{"name":"Ecology Law Quarterly","volume":"101 1","pages":"373"},"PeriodicalIF":0.0,"publicationDate":"2015-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67593504","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The debate over the precautionary principle versus cost-benefit analysis in environmental decision making has engaged legal and policy experts for decades. At its heart, the precautionary principle counsels that governmental action should be taken to reduce the risk of serious harms, even if the evidence defining the harm is not sufficient to meet the evidentiary standard of certainty in a civil proceeding, and even if uncertainty is too great to be able to quantify and compare costs and benefits with precision. In Coalition for Responsible Regulation v. EPA, the U.S. Court of Appeals for the District of Columbia Circuit upheld EPA’s regulation of greenhouse gas emissions from motor vehicles on the ground that such emissions endanger public health and welfare. Both EPA and the court placed primary reliance on the precautionary principle of the Clean Air Act’s endangerment standard as construed in the 1976 D.C. Circuit case Ethyl Corp. v. EPA, upholding EPA’s regulation of another motor vehicle pollutant, lead emissions resulting from the use of lead additives in gasoline. This Article contends that the issues and outcomes of the two regulatory decisions demonstrate why a precautionary approach — balancing probability and severity of harm and acting before full quantification of benefits and costs is possible — is a necessary framework for sound decision making on the most complex and consequential threats to the environment, including the extraordinary challenge of climate change.Reliance on quantified cost-benefit analysis has become the prevailing approach in U.S. environmental decision. The Article rejects the view that cost-benefit analysis alone should determine environmental regulatory decisions as well as the opinion that precaution excludes consideration of such analysis. To explore these issues, the Article analyzes and compares the lead additive and greenhouse gas decisions with reference to the uncertainty of the relevant science and the level of quantification of regulatory benefits and costs. The Article also considers whether scientific advances since each decision was made confirm or call into question EPA’s regulatory actions and contends that a precautionary approach will be necessary and appropriate to assess the justification for regulating existing electric power plants under the Clean Air Act. The conclusion identifies several elements of reasoned decision making under a precautionary standard as well as the major public benefits gained and likely to be gained by the two EPA decisions reducing automotive lead and greenhouse gas emissions.
{"title":"Upholding EPA Regulation of Greenhouse Gases: The Precautionary Principle Redux","authors":"L. Carothers","doi":"10.15779/Z38Q56N","DOIUrl":"https://doi.org/10.15779/Z38Q56N","url":null,"abstract":"The debate over the precautionary principle versus cost-benefit analysis in environmental decision making has engaged legal and policy experts for decades. At its heart, the precautionary principle counsels that governmental action should be taken to reduce the risk of serious harms, even if the evidence defining the harm is not sufficient to meet the evidentiary standard of certainty in a civil proceeding, and even if uncertainty is too great to be able to quantify and compare costs and benefits with precision. In Coalition for Responsible Regulation v. EPA, the U.S. Court of Appeals for the District of Columbia Circuit upheld EPA’s regulation of greenhouse gas emissions from motor vehicles on the ground that such emissions endanger public health and welfare. Both EPA and the court placed primary reliance on the precautionary principle of the Clean Air Act’s endangerment standard as construed in the 1976 D.C. Circuit case Ethyl Corp. v. EPA, upholding EPA’s regulation of another motor vehicle pollutant, lead emissions resulting from the use of lead additives in gasoline. This Article contends that the issues and outcomes of the two regulatory decisions demonstrate why a precautionary approach — balancing probability and severity of harm and acting before full quantification of benefits and costs is possible — is a necessary framework for sound decision making on the most complex and consequential threats to the environment, including the extraordinary challenge of climate change.Reliance on quantified cost-benefit analysis has become the prevailing approach in U.S. environmental decision. The Article rejects the view that cost-benefit analysis alone should determine environmental regulatory decisions as well as the opinion that precaution excludes consideration of such analysis. To explore these issues, the Article analyzes and compares the lead additive and greenhouse gas decisions with reference to the uncertainty of the relevant science and the level of quantification of regulatory benefits and costs. The Article also considers whether scientific advances since each decision was made confirm or call into question EPA’s regulatory actions and contends that a precautionary approach will be necessary and appropriate to assess the justification for regulating existing electric power plants under the Clean Air Act. The conclusion identifies several elements of reasoned decision making under a precautionary standard as well as the major public benefits gained and likely to be gained by the two EPA decisions reducing automotive lead and greenhouse gas emissions.","PeriodicalId":45532,"journal":{"name":"Ecology Law Quarterly","volume":"41 1","pages":"683"},"PeriodicalIF":0.0,"publicationDate":"2014-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67531600","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
京公网安备 11010802042870号
京ICP备2023020795号-1
扫码关注我们
求助内容：
应助结果提醒方式：