June 29, 2012
Secretary Salazar's Unfortunate Prediction
Good news for the Arctic! “There’s not going to be an oil spill”—this according to Ken Salazar, the nation’s Secretary of Interior and, now, environmental crystal-gazer. As someone still fretting about BP’s mess in the Gulf, I want to believe; but it’s hard. So let me back up.
Earlier this week, Secretary Salazar said it was “highly likely” that his agency would grant Shell Oil permits to begin drilling exploratory wells in Arctic waters north of Alaska, despite opposition from many environmental groups. While acknowledging the many challenges presented by such an operation, the Secretary recalled his department’s new permitting standards and expressed confidence in a new oil containment device that was recently tested in Washington’s Puget Sound.
Then: “I believe there will not be an oil spill. . . . If there is, I think the response capability is there to arrest the problem very quickly and minimize damage. If I were not confident that would happen, I would not let the permits go forward.”
I won’t dwell on the fact that Shell has faced more prosecutions for safety and environmental violations than any other major oil company drilling offshore in the North Sea. Or that last year the Coast Guard warned that if a spill occurred in the Arctic, “we’d have nothing. We’re starting from ground zero today.” Or that Secretary Salazar seemed equally impressed with the “remarkable” gee-whiz technology used in the Gulf of Mexico before it blew up. (President Obama was similarly smitten, boasting eighteen days before the blowout that “oil rigs today generally don’t cause spills.”)
Instead I want to focus on risk management and cats. (Stay with me now.)
When Secretary Salazar says he doesn’t believe there will be an oil spill, and if there is it can just be cleaned up, he’s ignoring how complex disasters actually unfold. In the BP Blowout, it wasn’t one thing that went wrong; dozens of things went wrong, from poor diagnostics to bad cementing to inadequate response resources to failed “top kills.” Often, these events feed on one another—as in a chain reaction—making the sum devastation much greater than that from any individual event.
In our textbook on disaster law, my co-author Dan Farber explains the challenge of predicting failure in a complex system by asking us to visualize cats. (Jim Chen and Lisa Grow Sun are also co-authors on this book.)
Explaining the “simple” system, Farber writes:
When an event is caused by a large number of random factors, the resulting probability distribution is often the famous bell-shaped curve . . . with most events bunched near the average and extreme outcomes fading away quickly. If the average cat weights ten pounds, we can expect that most cats will be within a few pounds of the average and we can safely disregard the possibility of a two-hundred pound tabby.
A simple distribution looks like this:
Complex systems . . . are often characterized by a different kind of statistical distribution called a “power law.” If feline weight were subject to a power law, we would find that the vast majority of cats were tiny or even microscopic but that thousand-pound house cats would cross our paths now and then. Under a power law, the possibility of freak outcomes, a one-ton [feline], weighs heavily in the analysis, often more heavily than the far more numerous “routine” outcomes, the tiny micro-cats. Indeed, a power law probability distribution makes it somewhat misleading to even talk about “typical” outcomes. . . . Extreme events are more likely in complex systems – obviously something that’s very relevant to disaster issues.
Links to Environmental-Related Stuff on Yesterday's Health Care Decision
While it is certain I will miss some, here are the blogs that I have seen on how yesterday's health care ruling might (or might not) impact future environmental law cases.
Ann Carlson (Legal Planet) -- Another (Mostly) Uninformed Post About the Health Care Cases and Environmental Law
Brigham Daniels (this blog) -- Fortuitous Spleens and Hapless Toads
David Driesen (CPR Blog) -- Health Care's New Commerce Clause: Implications for Environmental Law
Tim Mulvaney (this blog) -- Today's Health Care Decision: Some Potential Implications for Environmental Law
Jonathan Zasloff (Legal Planet) -- Conditional Spending and the Clean Air Act
Here are a number of media soucrces on what the opinion says about future cases (including environmental cases) more generally.
Jonathan Adler (SCOTUS Blog) -- Lose the battle, win the war?
Erwin Chemerinsky (SCOTUS Blog) -- A surprise?
Jedediah Purdy (Huffington Post) -- How to Read the Health Care Opinion
James B Stewart (NY Times, The Caucus) -- An Important New Limit on the Commerce Clause
-- Brigham Daniels
June 28, 2012
Today's Health Care Decision: Some Potential Implications for Environmental Law
As many scholars already have noted throughout the afternoon, today’s decision by the U.S. Supreme Court to uphold the basic provisions of the Patient Protection and Affordable Care Act could have important implications for environmental law moving forward.
In an opinion authored by Chief Justice Roberts and joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan, the Court concluded that the Act’s requirement that certain individuals pay a penalty for failing to obtain health insurance could reasonably be characterized as a constitutional tax. However, the Chief Justice joined Justices Scalia, Kennedy, Thomas, and Alito in concluding that Congress’s power to regulate interstate commerce did not authorize this minimum coverage provision. Moreover, by a vote of 7-2, the Court struck down as violative of the Constitution’s Spending Clause a portion of the Act that would have required states to either acquiesce to an expansion of Medicaid or sacrifice existing federal Medicaid contributions. In a statement read from the bench, Justice Ginsburg asserted that “the Affordable Health Care Act survives largely unscathed, but the court’s Commerce Clause and Spending Clause jurisprudence has been set awry. My expectation is that the setbacks will be temporary blips, not permanent obstructions.”
On the environmental front, preliminary analysis suggests that the potential ramifications largely fall into two categories. First, it is possible that the Court’s pronouncement on the Commerce Clause could prompt new challenges to federal laws seeking to protect and preserve natural resources and public health. (Yet, as Ann Carlson notes on Legal Planet, environmental laws do not mandate that people enter a stream of commerce; instead, they seek to regulate the harmful effects of commerce.) Second, the Court’s conclusion on the Medicaid expansion issue could open the door to challenges to laws pertaining to other federally financed state programs; for example, the Clean Air Act’s provisions that authorize the federal government to withhold federal highway funding in the event states fail to revise their plans to reduce air pollution to meet federally-specified air quality standards. (However, Jonathan Zasloff, also on Legal Planet, explains several key differences between the Medicaid provision and the Clean Air Act’s provision regarding potential elimination of federal highway funds, including the fact that such highway funds are appropriated every year and thus may not amount to entitlements on which the states reasonably can rely.)
In addition to these two broad categories, there certainly could be more specific impacts to environmental law lurking in the nearly 200-page decision issued this morning. For one, as I followed the decision’s coverage surrounding Chief Justice Roberts’ deferential understanding of the government’s ability to levy taxes, I thought of Eduardo Penalver’s thought-provoking article entitled Regulatory Taxings, 104 Colum. L. Rev. 2182 (2004).
Penalver described the tension between (1) the U.S. Supreme Court’s relatively recent expansive, if indeterminate, reading of the Takings Clause to reach beyond outright government appropriations of property, and (2) the Court’s long history of recognizing a nearly illimitable power to tax. (Admittedly, Penalver authored the piece prior to the Court’s deciding Lingle v. Chevron and Kelo v. New London, both of which arguably slowed the pace of this expansion of federal takings law; nonetheless, his basic premise regarding the differing constitutional treatment of takings and taxes largely remains accurate.) Penalver suggested that any theoretical attempt to reconcile current prohibitions on takings with the constitutional treatment of taxation yields a category of “regulatory taxings,” i.e., “state actions that although viewed as takings under current doctrine, cannot be distinguished from taxes under the particular ‘reconciling theory’ examined.”
Some scholars, most notably Richard Epstein, have drawn on this tension to attack the very legitimacy of many taxes. Penalver, however, critiqued Epstein’s approach “to redefine a settled area of law (tax law) by reference to a novel theory of a doctrine (takings law) badly in need of concrete definition.” Alternatively, Penalver suggested that one might “run [Epstein’s] argument in the other direction” and “use the settled law of taxation as a constitutional fixed point around which to more clearly [and, necessarily, more narrowly] define the law of takings.”
In today’s opinion, Chief Justice Roberts demonstrated principled regard for the longstanding, extensive judicial deference towards taxation. Such deference to the government’s taxing power could forecast his views in future takings cases, many of which often involve challenges to environmental regulations. That, though, is only the case if the Chief Justice concurs with Penalver, Epstein, and others that the inconsistency between takings and taxation jurisprudence needs resolution.
Fortuitous Spleens and Hapless Toads
Today, while upholding the Affordable Care Act on other grounds, the Supreme Court found that the Commerce Clause was not broad enough to sustain the Act's individual mandate. While there is reason to distinguish the opinion in the Affordable Care Act case with most other enactments by Congress, today's ruling--like a number of other cases from the past decade--raises some question marks about whether some applications of federal environmental law are constitutional under Congress's Commerce Clause power.
As I sat reading the opinion this morning, I kept thinking back to a famous dissent the Chief Judge penned before he was elevated to the High Court. Specifically, not too long after he became a judge on the D.C. Circuit, that court was asked to rehear a case en banc in which a three-judge panel had earlier ruled to uphold the Fish and Wildlife Service's decision to protect arroyo toads under the Endangered Species Act. The majority of judges on the D.C. Circuit voted not to rehear the case, triggering the Robert's dissent. Displaying both humor and hostility toward the Service's application of the Endangered Species Act, Roberts wrote:
"The panel's approach in this case leads to the result that regulating the taking of a hapless toad that, for reasons of its own, lives its entire life in California constitutes regulating 'Commerce ... among the several States.'"
While today's news is that Roberts voted to uphold the Affordable Care Act, his opinion also might serve as a warning shot of things to come. If that shot hits, toads and a wide range of other things in our natural environment might sit haplessly by as the Court employs some of the logic in today's opinion to strip away the reach of federal environmental laws.
-- Brigham Daniels
June 27, 2012
D.C. Circuit Upholds EPA Greenhouse Gas Regulations
Yesterday the D.C. Circuit rejected a challenge by industry groups to the U.S. EPA's regulation of stationary sources' greenhouse gas emissions under the Clean Air Act. The D.C. Circuit summarizes its opinion as follows:
Following the Supreme Court’s decision in Massachusetts v. EPA, 549 U.S. 497 (2007)—which clarified that greenhouse gases are an “air pollutant” subject to regulation under the Clean Air Act (CAA)—the Environmental Protection Agency promulgated a series of greenhouse gas-related rules. First, EPA issued an Endangerment Finding, in which it determined that greenhouse gases may “reasonably be anticipated to endanger public health or welfare.” See 42 U.S.C. § 7521(a)(1). Next, it issued the Tailpipe Rule, which set emission standards for cars and light trucks. Finally, EPA determined that the CAA requires major stationary sources of greenhouse gases to obtain construction and operating permits. But because immediate regulation of all such sources would result in overwhelming permitting burdens on permitting authorities and sources, EPA issued the Timing and Tailoring Rules, in which it determined that only the largest stationary sources would initially be subject to permitting requirements.
Petitioners, various states and industry groups, challenge all these rules, arguing that they are based on improper constructions of the CAA and are otherwise arbitrary and capricious. But for the reasons set forth below, we conclude: 1) the Endangerment Finding and Tailpipe Rule are neither arbitrary nor capricious; 2) EPA’s interpretation of the governing CAA provisions is unambiguously correct; and 3) no petitioner has standing to challenge the Timing and Tailoring Rules. We thus dismiss for lack of jurisdiction all petitions for review of the Timing and Tailoring Rules, and deny the remainder of the petitions.
Ann Carlson has provided an excellent overview of the opinion in its broader context and a discussion of standing issues. The opinion is also interesting when viewed as an example of climate change litigation's role in shaping the U.S. regulatory path (an issue that has long been of interest to me and on which I'm doing some new comparative work with Jacqueline Peel of the University of Melbourne). In the context of these regulations in particular, the courts have repeatedly served in multiple roles. The U.S. Supreme Court, through its finding in Massachusetts v. EPA that the EPA abused its discretion in its approach to failing to regulate greenhouse gases, engaged in statutory interpretation which served as the basis for EPA's subsequent action. The Court reinforced the appropriateness of ongoing litigation over EPA's use of its regulatory authority in this context while closing the federal public nuisance pathway in AEP v. Connecticut. In this case, the D.C. Circuit helped to resolve such a challenge and further clarify standing issues; time will tell whether an en banc D.C. Circuit or the Supreme Court will uphold this resolution if there are further appeals. Moreover, this decision occurs in the context of a wide range of other lawsuits regarding climate change, some focused directly on regulation and many others on building/expanding/permitting coal-fired power plants. Especially because the Congress looks unlikely to pass comprehensive climate change litigation anytime soon, these lawsuits play a critical role in constituting and shaping the U.S. regulatory approach to this problem in general and in clarifying the Clean Air Act's role in particular.
The EU Pfizer decision: Still provoking thought on risk regulation in the EU
This week I had an opportunity to discuss risk regulation with a group of American and French students. We reviewed Jonathan Weiner's article, Whose Precaution After All? A Comment on the Comparison and Evolution of RisK Regulatory Systems, 13 Duke J. Comp. & Int'l L. 207 (2003). I also had an opportunity read a summary of a 2002 case referred in Weiner's article, Pfizer Animal Health SA v. Council of the European Union (European Court of First Instance, 2002). The case addressed the issue of the authority of European Community institutions in regulating the marketing of antibiotics for use as an additive in "feedingstuffs." While the case is old, it remains unchallenged and provides food for thought. I was particularly struck by the following parts of the decision and their divergence from the U.S jurisprudence:
1. While EC institutions must seek the advice of scientific experts, their opinion is not binding on the public authority. It may choose to regulate a risk even when there is contrary finding (in fact, in exceptional circumstances it can circumvent the general requirement that scientific advice must be sought before deciding to regulate a risk).
2. The principle of proportionality, which is akin to a cost-benefit analysis, should guide the decision of public authorities. While this principle is generally understood to mean that an EC institution should not "exceed the limits of what is appropriate and necessary" to legitimatey pursue the objectives of a legislation, in the case of common agricultural policy, discretionary power is recognized unless a decision is "manifestly inappropriate."
3. "The protection of public health, which the regulation is intended to guarantee, must take precedence over economic considerations."
4. An economic actor (in this case Pfizer) has no "right to be heard" in legislative procedures, even when a measure may affect such an actor. (Apparently, a matter pending before courts under the Aarhuus Convention may affect this decision, but it unclear whether and to what extent).
To my knowledge, comparable standards are not applied by U.S. courts. In this post, I raise the questions that we discussed in class, albiet without any concrete conclusion: Why are the standards regarding risk regulations different? Which is a better approach? How can we learn from each jurisdiction?
June 25, 2012
On Climate and Forests, Don't Forget the Institutions
Last week I had the pleasure of presenting at the International Symposium on Society and Natural Resources in Edmonton, Canada. First of all, it was a nice way to get a long-overdue forest fix by taking my first mountain forest hike with my son (it seems I have spent more time writing about forests of late than walking through them; but see image below). Second, however, it reminded me once again of the importance of governance institutions in facilitating political ideas and policy choices.
I prepared for the conference by expanding on research I had already performed on the allocation of governance authority over forest policy between national and subnational governments in certain federal systems. In some systems, particularly in the developed world, the institution that allocates regulatory authority (the Constitution) presents major obstacles for national-level forest policy, which may facilitate varied, disparate, and inconsistent subnational forest policies - a situation that can have major implications for climate policy, since nearly 20 percent of global carbon emissions result from forest destruction and degradation. So even if political will exists to craft national-level forest policy (which in turn impacts global forest and climate policy), the legal institution itself can be a roadblock. In other federal systems, particularly in the developing world, the constitutional institution is quite strong, providing for very dynamic forms of federalism that allow direct regulatory inputs into forest policy at national and subnational levels. Rather, the problem in much of the developing world is that nations' enforcement and rule of law institutions are inadequate to ensure implementation of forest policies at all levels.
Indeed, institutional weaknesses have impacted what was once the great hope for global forests, and which may still remain so with the right institutional and policy tweaks - Reduction in Emissions from Deforestation and Degradation (or REDD) programs. A few days ago, at Rio+20, a summary report on REDD announced that the challenges REDD programs face "are not easily overcome." REDD programs have been described as "floundering," due to uncertainties regarding the allocation of project funds, hijacking of the funding process by those holding forests "hostage" (so to speak) unless they are paid not to cut their forests, and the inability politically at the international level to reach consensus on reducing industrial carbon emissions (emissions limits which would be a driver for forest-based carbon offsets). Ultimately, while these political questions complicate the REDD solution, institutions facilitating the programs are in desperate need of attention. In the words of Professor Stephen Howes, director of the Development Policy Centre at the Australian National University's Crawford School of Public Policy, "[y]ou need to have an approach that's more focused on national government policy. You need to change national government policies and strengthen national institutions if you're going to hope to tackle these drivers of deforestation."
Relevant for my talk at ISSRM, and a future article on which I am working (suggestions welcomed!), is how the forest governance strengths in the developed world (enforcement and implementation) can be linked with the governance strengths in the developing world (dynamic constitutional federalism allowing direct regulatory inputs into forest policy at all levels of government) to allow more robust and successful forest policy in all federal systems. For one, more dialogue needs to take place between federal systems on institutional structure, rather than focusing primarily on political goals and aspirations. Countries need to establish more direct discussions about how, notwithstanding sovereignty concerns, they can learn from each other from an institutional perspective - not unlike the debates our Framers had over the form of our Constitution early on. In a time when so much is becoming globalized, countries should not maintain isolationism regarding individual national institutions. Let's not only remember the importance of institutions on the domestic level, but let's share and receive institutional knowledge as freely as we do international goods and services - in a new "global institutions market."
- Blake Hudson
In Case You Missed It: The Week of June 17-23
* As detailed by Sean Hecht over at Legal Planet, UCLA and the city of Los Angeles publish the first long-term climate forecast for a city’s neighborhoods.
* Florida's freshwater springs are increasingly threatened by development.
* U.S. carbon emissions drop despite inaction of Congress, primarily due to a shift toward natural gas.
* The American diet in one chart.
* You can identify poor neighborhoods from space - by their lack of trees: