Saturday, March 10, 2007

Rapanos Redux: reading the tea leaves

On March 8, 2007, the US Supreme Court denied cert in Morrison v. US, in which the 6th Circuit held that certain island property in Michigan was within CWA regulatory jurisdiction.  The wetlands were adjacent to a  navigable water, which established the significant nexus between wetlands and navigable waters required for the Act to apply.   The 6th Circuit decision was issued prior to Rapanos v. U.S., 126 S.Ct. 2208, 165 L.Ed.2d 159 (2006).  Petitioner argued that Rapanos reversed the Sixth Circuit's determination that CWA jurisdiction extends to any wetland that bears a mere hydrological connection to a traditional navigable waterway.  Petitioner argued that under Marks v. U.S., 430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977), the Rapanos plurality opinion authored by Justice Scalia was controlling because its rationale was a logical subset of Justice Kennedy's concurrence.  The US argued that the United States has regulatory jurisdiction over any wetland satisfying either the plurality standard or Justice Kennedy's standard.  The US argument was based on the statement by four dissenting Justices in Rapanos that they would sustain the exercise of federal regulatory jurisdiction under the CWA whenever either standard is satisfied.

March 10, 2007 in Cases, Governance/Management, Law, US, Water Quality, Water Resources | Permalink | TrackBack (0)

Tuesday, March 6, 2007

The Lessons of the Montreal Protocol

I remember sitting about 20 years ago in a conference room of the Assistant Attorney General for the Environment Division in the Justice Department.  As the Department's policy representative, I was listening to representatives of several CFC manufacturers who were trying to prevent US implementation of the Montreal Protocol.  They explained that it was simply infeasible for the CFC manufacturers to comply with the Montreal Protocol.  I am extremely glad that no one believed them:  since that time the US has effectively implemented the Protocol, even to the point of criminally prosecuting car repair shops that mishandled air conditioning refrigerants regulated under the Montreal Protocol. 

Science reports on a new study published in PNAS indicating that the Montreal protocol has limited the growth in global warming as well as helping repair the ozone layer.  Indeed, so far its beneficial effects in limiting global warming outstrip those of Kyoto.  That should really come as no surprise.  First of all, the Montreal Protocol has been fully implemented and in effect far longer.  Second, it regulated some of the most detrimental GHGs because of their effect on the ozone layer -- so essentially the Montreal Protocol picked some of the "low-hanging fruit" --an overworked, but accurate metaphor for the most easily accomplished changes. 

However, most importantly, the Montreal Protocol used an effective regulatory approach.  There is little doubt that the most effective regulatory device is a phased-in ban or stringent cap, particularly one that allows trading during the phase down, which in turn efficiently distributes the costs of phase down to the least cost avoiders.  [In this respect, a cap with marketable rights is far superior to a tax because we have real certainty about the environmental target that will be accomplished through the cap, whereas the amount of a tax to hit the target is guesswork, that may well require multiple adjustments, thus reducing regulatory certainty and industry willingness to commit R & D]. 

We've verified that theoretical observation with the real life successes of the CAA lead phase down as well as the acid rain program.  The key is a strict schedule for the phasedown and stringent targets.  It gives industry the regulatory certainty necessary to invest in necessary R & D -- and even if industry does not believe it is feasible to hit the target when the target is first established (as indeed the CFC manufacturers claimed at the time), industry is remarkably adept at finding ways to do seeming impossible tasks.   Indeed, that is the genius of free enterprise.

Obviously, Kyoto was intended to be the beginning of a phase-down of carbon emissions.  But it hasn't worked as well as it might have due to the constant uncertainty about post-2012 requirements. 

There is a lesson in this for the world's policymakers if they are willing to learn.  The tripe currently being circulated in policy circles about "maintaining flexibility in the face of improving or changing information" is just that -- tripe.  Regulatory certainty is essential to induce the magnitude of investment necessary to get us out of the carbon trap.  Sometimes we just have to say "no," provide a series of targets and firm deadlines, ease the pain and create flexibility in implementation through well-designed trading programs that first and foremost hit the targets, and use strong enforcement mechanisms to assure compliance.  Then, we can actually accomplish something.

Since reducing carbon emissions is something we really need to accomplish, we need to use the lessons of the past about how to effectively regulate, and refuse to listen to theoretical nonsense about optimal regulation.  We know how to do this.  We just need to do it.  Now.    

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.Picture of a graph
So far, the CFC ban has prevented the release of far more greenhouse gases (green and blue lines) than have the CO2 reduction targets imposed by the Kyoto Protocol (red line). See full story from Science News below.

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March 6, 2007 in Air Quality, Climate Change, Energy, Governance/Management, International, Law, Legislation, Physical Science, Sustainability, Toxic and Hazardous Substances | Permalink | TrackBack (1)