We will phase out fossil fuels. We have no choice. They are a finite resource and at some point they will run out. Admittedly, coal will not run out nearly as quickly as oil, but sooner or later all fossil fuel resources will run out.
The only question we face is whether we phase out fossil fuels before we have set in motion climate disruption’s worst effects or instead just allow a phase-out to occur through price shocks and shortages that we are ill-prepared to cope with, and risk a climate catastrophe. Obviously, a managed phase-out makes much more sense. Climate disruption will plague us with increasingly violent storms, flooding, drought, a spread of infectious diseases, and other calamities. A reasonably rapid phase-out will help us avoid some of these impacts by first reducing and eventually eliminating emissions of carbon dioxide, the principal greenhouse gas. At the same time, switching to cleaner fuels will save thousands of lives annually and many more illnesses right away, as burning the fossil fuels that cause climate disruption also causes particulate pollution and urban smog (tropospheric ozone). A phase-out of fossil fuels also would gradually end destruction of land through coal mining and disastrous oil spills, like that of the Deepwater Horizon.
Although we cannot end fossil fuel use right away, we must move in the direction of a phase-out as rapidly as we can. Carbon dioxide emitted in the atmosphere adds to the preexisting store of carbon and remains there for a very long time. Hence, every year of inaction adds to a cumulative store of carbon in the atmosphere, making the climate disruption problem irreversibly worse.
We must rid ourselves of the illusion that we can drill our way to energy and price security. Oil trades on a world market, even oil coming from the United States. In 2011, we imported 45% of our oil from abroad, more than half from OPEC countries, and that was the lowest percentage since 1995. Renewable energy, however, relies overwhelmingly on domestic fuels. You cannot ship sunlight or wind to China.
Full textCross-posted from RegBlog.
Nobody seems to have noticed, but the Center for Progressive Reform (CPR) recently recommended abolition of review by the Office of Information and Regulatory Affairs (OIRA) based on cost-benefit analysis (CBA). Its report on recommendations for the second Obama Administration made this proposal the sixth item in a list of seven executive orders that Obama could issue with a "Stroke of the Pen" (from the report’s title). In place of CBA-based review, which has often stymied or delayed needed environmental protections, CPR recommends a complete OIRA role reversal, charging it with addressing regulatory delay and helping agencies “achieve their statutory missions.” CPR also recommends abolishing review of minor rules altogether and improving transparency.
What was first on CPR’s list of “stroke of the pen” reforms? An executive order to take action on climate mitigation – which would include a detailed list of regulatory actions with accompanying deadlines.
My hunch is that the Obama Administration is going to be more inclined to adopt recommendation number 1 than recommendation number 6, particularly given the attention to the subject in the President’s Second Inaugural Address. This does not mean that CPR erred in recommending abolishing CBA-based OIRA review. CPR is a virtual think tank of legal scholars, not a traditional environmental group, and it should put forward sound reform proposals that might be adopted, if at all, only after a very long period of debate and discussion.
Full textReposted from RegBlog.
Traditionally, the field of law and economics has treated government regulation as if it were a mere transaction. This microeconomic approach to law assumes that government regulators should aim to make their decisions efficient by seeking to equate costs and benefits at the margin.
As I argue in a new book, The Economic Dynamics of Law, the microeconomic model of government regulation misconceives the essence of regulation. Government regulation produces not an instantaneous transaction, but a set of rules intended to influence future conduct, often for many years. Accordingly, regulation provides a framework for private resource allocation, rather than allocating the resources itself. This framework performs a macroeconomic role by reducing systemic risks that might permanently impair important economic, social, and natural systems. As such, government regulation resembles monetary policy, which likewise affects, but does not control, resource allocation. 
Properly understood, the relationship between law and the economy implies that private actors can ameliorate the effects of nominally inefficient government decisions. Capitalism works precisely because government cannot assimilate sufficient information to make perfectly efficient decisions. Yet, the neoclassical model of law and economics assigns government the efficiency-enhancing role that properly belongs to private actors.
In The Economic Dynamics of Law I propose a more appropriate way of thinking about regulation. This approach focuses on the shape of change over time in order to avoid systemic risk. We cannot expect government to make perfectly efficient decisions or ensure our future happiness, but we should, at a bare minimum, expect government to ward off catastrophes, leaving much of the fine-tuning to private markets.
I also propose a form of institutional economic analysis that I call economic dynamic analysis, as a way to aid regulators in analyzing threats and responding efficaciously. Economic dynamic analysis requires regulators to study how relevant actors respond to economic incentives, taking into account the level of bounded rationality anticipated in each group of regulated actors. Such analysis requires, in particular, consideration of countervailing incentives that may defeat legal incentives. Economic dynamic analysis also calls for the use of scenario analysis in the case of some of our most serious problems. Finally, it includes empowerment analysis to determine who law might empower or disempower, as an extension of public choice theory.
Full textAlthough the Supreme Court upheld the Affordable Care Act’s requirement that most individuals purchase health insurance (called the individual mandate) as within Congress’ power to levy taxes, it stated that Congress lacked the power to enact it under the Commerce Clause. Under prior case law, Congress could regulate activities substantially affecting interstate commerce by any means not offending the bill of rights. Since the Affordable Health Care Act regulates a set of activities that substantially affect interstate commerce, namely the provision of health care (including insurance), it posed no substantial issue under that case law. The objection to the “individual mandate” at bottom involved an effort by conservatives to defend individual liberty of the type protected by the Court during the Lochner era, when it created “substantive due process” doctrines to ward off progressive legislation.
Yet, the Court agreed to redefine the issue as whether the activity regulated by a single provision of this plainly constitutional statute, namely the individual mandate provision, substantially affected interstate commerce. On this matter, five justices—Alito, Kennedy, Roberts, Scalia, and Thomas—answered, in essence, that this provision regulated inactivity, the failure to purchase insurance. They created, out of whole cloth, a brand new constitutional principle that the federal government may not order somebody to purchase a product.
Full textCross-posted from RegBlog.
As Stuart Shapiro recently pointed out in a RegBlog post, President Obama himself made the decision a week ago to withdraw the U.S. Environmental Protection Agency’s (EPA’s) ozone National Ambient Air Quality Standard (NAAQS). Presidents have occasionally acted to resolve disputes between the White House Office of Information and Regulatory Affairs (OIRA) and EPA before, but typically OIRA acts in the President’s name without knowing exactly what he thinks about the regulatory details that OIRA negotiates with EPA. Stuart Shapiro also correctly points out that the President’s substitution of his general policy judgment for a judgment of an agency charged by Congress with the responsibility to implement a statute’s policy has implications for administrative law.
Obama’s withdrawal of the ozone NAAQS shows why these implications should trouble everybody, even those who do not like the Clean Air Act’s policy of basing the NAAQS on health considerations alone, leaving cost for later consideration in formulating plans to meet the NAAQS. Many Americans still believe that the “rule of law not men” embedded in our Constitution should mean something. There is some wisdom in this idea. Enacted law, however imperfect, can lend some stability to efforts to solve stubborn national problems and moderate the tendency of government to go into wild mood swings that can make government ineffectual. The rule of law, however, demands that those who enforce the law follow its policies even when they conflict with their personal or political preferences.
The Supreme Court has held that EPA must set the NAAQS at a level that protects public health without regard to costs. Obama’s decision relies squarely on a rejection of the law’s fundamental policy, citing the burdens on regulated firms during a time of economic weakness as the primary reason for withdrawing the standard. I would find the President’s decision to ignore the law in favor of his own policy preferences troubling, since we long ago rejected monarchy, even if I were sure that his policy decision was a sensible one.
Full textLast week, Senators Kerry, Graham, and Lieberman (KGL) reportedly released an 8-page outline for a bill mitigating climate disruption that they are crafting in order to try to break the deadlock that has heretofore blocked legislation in the Senate. ClimateWire reported that the KGL bill would incorporate ideas from the bill introduced by Senators Maria Cantwell (D. Wash.) and Susan Collins (R. Maine), the Carbon Limits and Energy for America’s Renewal (CLEAR) Act. That incorporation might be a good thing, because CLEAR contains several great ideas.
Last year, Amy Sinden and I characterized the idea of Dirty Input Limits (DILs), limits on inputs causing pollution rather than pollution itself, as the “missing instrument” in environmental law. We used the idea of creating a tradable permit market from limits on fossil fuel production and imports as an illustration of the potential of this instrument, which has been used in successful regulatory efforts to head off stratospheric ozone depletion and practically eliminate lead pollution, but has hitherto gone unnoticed as an environmental policy instrument. CLEAR in fact creates a DIL for fossil fuels, just as we recommended.
The main advantages of this approach come from its relative simplicity and its likely effect on innovation. We have far fewer fossil fuel producers and importers than fossil fuel users. By regulating upstream, CLEAR may reduce the number of entities that EPA needs to monitor. Also, by sending a strong signal that the government will demand reductions in fossil fuel use, this approach will likely jump-start innovation.
Full textCap-and-trade legislation making its way through Congress has become enormously complex, embodying a host of arcane political deals governing the distribution of the vast majority of emissions allowances being given away for free, with crucial details being left to EPA. This complexity threatens to hinder the effort to address climate disruption (see my article Capping Carbon). It would lead to long delays and weak implementation, just like other laws delegating a lot of controversial and litigable decisions to administrative agencies. Delays and weakness could prove disastrous in the climate disruption context, because greenhouse gas emissions have already warmed the planet and gases emitted while implementation flounders can create irreversible and potentially catastrophic ecological problems. Auctioning of 100% of the allowances would make the program run smoothly.
The Regional Greenhouse Gas Initiative—a cap-and-trade program that regulates utility emissions in the northeastern states— has relied on auctioning nearly 100% of the allowances. As a result, the long administrative delays typical of environmental programs have simply not arisen in this program. One Congressional bill, the Cap and Dividend Act of 2009, H.R. 1862, likewise relies on auctioning 100% of the allowances, but it has not gained political traction, at least not yet. But growing strife over political allocation decisions (see E&E Daily, subs. required) may make members of Congress realize that enactment of a simpler alternative based on auctions is better.
The cap-and-trade program for acid rain ran smoothly without auctioning only because Congress made all of the major design decisions itself, even including a table in the legislation allocating allowances to each phase one utility unit, thus leaving EPA with relatively few decisions to make in inevitably contentious rulemaking proceedings. Unfortunately, absent a decision to focus cap-and-trade on upstream providers of fossil fuels, duplicating this degree of specificity is not possible in a comprehensive cap-and-trade bill. The Waxman-Markey bill, for example, contemplates some 270 actions by agencies to implement the bill, some of which are essential to the cap-and-trade program’s operation. (See Michael Gerrard's database, accessible via his site, listing required agency actions under Waxman-Markey).
Full textA coalition of conservative and moderate Democrats has recommended deleting section 336 of the Waxman-Markey climate change bill because of "concern among industry about potential new liability for any emitter" under that provision (see the proposed amendments). Some polluters' objective, apparently, is to avoid liability for violating the law, and they recommend this deletion as a step toward accomplishing that goal.
But section 336 does not create any liability, new or old. Section 723 of the Waxman-Markey bill does that, quite appropriately, by establishing penalties for failure to meet targets or purchase sufficient allowances. And the liability in this other section does not apply to "any emitter," but only to emitters that violate the law by failing to reduce greenhouse gas emissions.
The whole notion that new obligations should create no new liability for violators, if accepted, would convert this bill from a mandatory cap and trade bill to another Bush Administration voluntary program. Industry concern about "potential new liability" should not be reason to amend a climate change bill at this point in the history of the world.
Section 336, however, has a much narrower effect. It attempts to preserve citizen standing in cases involving violations of climate change legal requirements by specifying that affected citizens may sue based on the potential contribution of a legal violation to global climate disruption. Without this provision, courts are more likely to make current law authorizing citizen enforcement of environmental law a dead letter in the climate change context.
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