Author: tedhamilton

HELR Volume 39, Issue 2 Available Online!

We are pleased to present our online readership with Issue 2 of the 39th Volume of the Harvard Environmental Law Review.

The latest issue of ELR begins with a detailed examination of the interagency consultation process under the Endangered Species Act, which empowers the Fish and Wildlife Service and the National Marine Fisheries Service to review other federal agencies’ decisions to ensure they will not jeopardize endangered species. As Prof. Travis Brandon explains, the lack of public comment in interagency consultations means that the Services are likely to get a skewed view of the potential harm created by federal agency action, a fact which courts should take into account when reviewing their decisions under the ESA.

39.2 also includes several articles analyzing legal issues surrounding climate-change policy, just in time for the UNFCCC negotiations in Paris this December. Prof. Arden Rowell describes the rise of regulatory analyses which justify agency regulation by referencing the global cost of carbon emissions, rather than limiting themselves to domestic considerations. As California continues to pass first-of-its-kind legislation intended to internalize the cost of carbon emissions in fuel production, Prof. Jeffrey Schmitt proposes a new test to determine whether such laws have an unconstitutional extraterritorial effect. Turning to the utilities sector, Shelly Welton, the former Deputy Director of Columbia’s Center for Climate Change Law, discusses the failure of the Federal Energy Regulatory Commission to promote innovation in energy efficiency, storage, demand response, and distributed generation. And Prof. David Wirth argues that the President has substantial power to join and implement a multilateral treaty on climate action, such as might come out of the Paris conference, without congressional action.

Finally, this issue includes a Comment on CTS Corp. v. Waldburger from Michael Barclay, who graduated from HLS this year and has served as an article editor for ELR.  In CTS Corp., the Supreme Court ruled that CERCLA, which preempts statutes of limitation,  does not also preempt statutes of repose. (Statutes of repose bar suits brought too long after a defendant’s last act, rather than turning on the plaintiff’s discovery of harm, as statutes of limitation do.) The Comment discusses the case’s practical and legal consequences, particularly as regard plaintiffs who could be barred from suing under CERCLA or similar laws because the harm from an environmental pollutant took too long to manifest.

Fearful Asymmetry: How the Absence of Public Participation in Section 7 of the ESA Can Make the “Best Available Science” Unavailable for Judicial Review

By Travis O. Brandon

Recent empirical studies have shown that public participation is an essential part of the listing process of the Endangered Species Act (“ESA”) because it provides the wildlife agencies with valuable scientific information regarding candidate species and forces agencies to make politically unpopular decisions to protect species standing in the way of development interests. However, the crucial agency-forcing mechanism of public participation is lacking in the interagency consultation process in section 7 of the ESA, one of the most important provisions by which the ESA’s protections for listed species are enforced. This Article explains how the absence of public input through a notice-and-comment procedure in the section 7 consultation process creates a chain of structural asymmetries that predictably skew section 7 decisions in favor of regulated parties and against environmental interests. Because of these structural asymmetries, section 7 is the only provision of the ESA where the “availability” of the “best available science” is an essential evidentiary issue. Examining several recent significant section 7 cases, this Article shows that courts have failed to grapple with the structural differences between section 7 and other parts of the ESA, leading to an inconsistent and improper application of the “best available science” standard in section 7. This Article argues that in order to address the structural asymmetries in the section 7 process, courts should be less deferential toward agency scientific analysis in section 7 decisions, and should be more willing to admit extra-record scientific evidence to challenge the adequacy of agency scientific decisions. Finally, the Article argues in favor of introducing a notice-and-comment procedure in a subset of significant section 7 decisions.

Cite as: Travis O. Brandon, Fearful Asymmetry: How the Absence of Public Participation in Section 7 of the ESA Can Make the “Best Available Science” Unavailable for Judicial Review, 39 Harv. Envtl. L. Rev. 311 (2015).

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Foreign Impacts and Climate Change

By Arden Rowell

U.S. administrative agencies now routinely base domestic regulatory decisions upon the expected global impacts of carbon dioxide emissions. This is a startling divergence from traditional regulatory practice, which had been to entirely exclude foreign impacts from domestic regulatory analysis. Even more strikingly, this significant shift in valuation practice has occurred with virtually no legal analysis as to when or whether agencies have the statutory authority to consider foreign impacts. As a result, a number of recent rules proposed on the basis of a globally scoped Social Cost of Carbon (“SCC”) are now vulnerable to legal challenge. To insulate future rules against such challenges, agencies should adopt the globally scoped SCC only where they have performed individualized, statute-specific analyses of their own authority to incorporate foreign impacts into their decisions.

Cite as: Arden Rowell, Foreign Impacts and Climate Change, 39 Harv. Envtl. L. Rev. 371 (2015).

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Making Sense of Extraterritoriality: Why California’s Progressive Global Warming and Animal Welfare Legislation Does Not Violate the Dormant Commerce Clause

By Jeffrey M. Schmitt

The dormant Commerce Clause’s extraterritoriality doctrine has long baffled courts and legal scholars. Rather than attempt to make sense of the doctrine, most scholars have instead argued that it should be abandoned as unnecessary and unworkable. Such scholarship, however, is of little use to the lower courts struggling with extraterritoriality issues. The federal courts in California, for example, have recently been forced to rule on challenges to California’s landmark carbon emissions and animal welfare legislation. Plaintiffs in these cases argue that California is regulating extraterritorially by telling ethanol producers and farmers in other states how to run their businesses. In these cases, the litigants and federal courts have struggled to formulate a coherent account of the doctrine, thus throwing California’s progressive legislation into doubt.

This Article proposes a new test based on existing lower court precedent to clarify the extraterritoriality doctrine. Under this proposal, a state’s regulation of in-state conduct would violate the extraterritoriality principle only when it: (1) inescapably has the practical effect of regulating conduct beyond the state’s borders; and (2) such regulated extraterritorial conduct lacks a corresponding in-state interest. Not only is this test supported by existing precedent, but it would also best serve the policy justification for the extraterritoriality doctrine by properly allocating state power in our federal system. Applying this proposed test to California’s legislation would provide a clear and coherent way to uphold California’s attempt to reduce the carbon emissions caused by Californians and to eliminate California’s role in cruelty to farm animals.

Cite as: Jeffrey M. Schmitt, Making Sense of Extraterritoriality: Why California’s Progressive Global Warming and Animal Welfare Legislation Does Not Violate the Dormant Commerce Clause, 39 Harv. Envtl. L. Rev. 423 (2015).

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Non-Transmission Alternatives

By Shelley Welton

This Article examines the reasons that “non-transmission alternatives”—including energy efficiency, energy storage, demand response, and distributed generation—have played a very limited role in meeting electricity grid constraints, despite their great potential. It argues that the predominant reasons for this failure lie in structural flaws in transmission planning in the United States, caused in part by questions over how far the jurisdiction of the Federal Energy Regulatory Commission (“FERC”) extends when it comes to these “non-transmission” resources. FERC has declared achieving “comparable consideration” for non-transmission alternatives to be an Agency goal, but has limited the extent of its reforms to opening up the planning process to stakeholders. It has enacted these limited participatory reforms knowing that transmission planning is carried out by entities with expertise biases and financial incentives to build transmission, such that stakeholder participation is an unlikely remedy for the problem. This Article illustrates why participatory reforms alone are likely to fail non-transmission alternatives, and then explores the jurisdictional limitations holding FERC back from creating transmission planning processes that fully and fairly incorporate non-transmission alternatives. In addition to suggesting ways that FERC can improve planning processes within its jurisdiction, this Article argues that the Commission does a disservice to the regulatory dialogue that occurs among Congress, the Agency, states, and stakeholders when it claims to have accomplished an objective that its reforms will do little to achieve in practice. It closes by suggesting that FERC might be more honest about the shortcomings of its reforms in order to inform inter-branch and state-federal conversations about options for progress on non-transmission alternatives.

Cite as: Shelley Welton, Non-Transmission Alternatives, 39 Harv. Envtl. L. Rev. 457 (2015).

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The International and Domestic Law of Climate Change: A Binding International Agreement Without the Senate or Congress?

By David A. Wirth

The perception of the United States as a laggard or malingerer on climate change is widespread. The current reality, however, is largely underappreciated and considerably more nuanced, both in terms of the substance of U.S. domestic action and its engagement with international processes. Unusual if not unique attributes of the United States’ domestic political, legal, and constitutional structure have come together on the climate issue in a revealing manner—one that thrusts into sharp relief the United States’ difficulties in managing foreign affairs while maintaining the domestic rule of law on heavily regulatory issues such as the environment.

This Article asserts that neither Senate advice and consent nor new congressional legislation are necessarily conditions precedent to the United States becoming a party to an agreement containing binding emission-reduction (mitigation) commitments adopted at the 21st Conference of the Parties to the U.N. Framework Convention on Climate Change, to be held in Paris in December 2015. Depending on the form of such an agreement, which is presently under negotiation, portions of the President’s Climate Action Plan could provide sufficient domestic legal authority for the conclusion of all or part of such a binding international instrument as an executive agreement, as well as for its domestic implementation, overcoming the legal necessity for interaction with Congress either before or after its conclusion.

In making this argument, the Article disaggregates U.S. international and domestic climate policy as it has developed to the present from a structural point of view. Among the subjects analyzed are (1) the extent of the Executive’s powers in foreign relations on climate and related issues; (2) the strengths and limitations of existing federal legislation as domestic legal authority for an international agreement; (3) options available under existing legislation, both those that have already been put in place and those in the process of implementation; (4) the extent, if any, of the need for additional legislation, and the international and domestic implications of the absence of additional legislative authority; and (5) the role of the courts.

Cite as: David A. Wirth, The International and Domestic Law of Climate Change: A Binding International Agreement Without the Senate or Congress?, 39 Harv. Envtl. L. Rev. 515 (2015).

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Jumbo-Sized Mouseholes: Comforting Thoughts on the Clean Power Plan, Part II

Elephant on a circus train
Elephant on a circus train

This summer, the Environmental Protection Agency (“EPA”) is expected to promulgate the final version of its Clean Power Plan, a set of regulations aimed at decreasing the carbon dioxide (“CO2”) emissions of U.S. power plants to 30% below 2005 levels over the next 15 years. Critics have argued that the plan oversteps the bounds of EPA’s power to regulate air pollution. In this two-part post, David Baake ’14, a former editor and writer for ELR, argues that the Clean Power Plan is well within EPA’s regulatory authority. This is the second part, addressing the contention that § 111(d) of the Clean Air Act (42 U.S.C. § 7411), which gives authority for the Clean Power Plan, was not intended to give rise to any regulations of such a sweeping nature: the “elephant in a mousehole” argument. You can read the first part here.

Opponents of the Clean Power Plan have attempted to characterize § 111(d) as an insignificant provision that was not designed to support a major regulatory initiative; in more colorful terms, an attempt to fit a regulatory “elephant” into a statutory “mousehole.” In support of this characterization, the Plan’s opponents note that EPA has established § 111(d) emission guidelines for only four pollutants from five source categories over the last forty years (79 F.R. 34,830, 34,844). While the precise contours of this argument remain unclear, the suggestion seems to be that the scant historical use of § 111(d) is evidence that this provision must be construed narrowly, perhaps by limiting EPA’s ability to consider measures like renewable energy and energy efficiency that are implemented “beyond the fenceline” of the facility containing the regulated source.

The problems with this argument begin with the statutory text. § 111(d) delegates in expansive terms, providing that EPA “shall” establish emission guidelines reflecting the best “system” of emission reduction for “any” existing source that emits “any” air pollutant not controlled under the national ambient air quality standards (NAAQS) program or the hazardous air pollutant (HAP) program. § 111(d)(1) and (2) further provide that these emission guidelines will be implemented by state and federal plans similar to those required by § 110, the centerpiece of the Clean Air Act’s most significant regulatory program. Under § 110(a)(2)(A) and (y), these plans may incorporate a wide range of pollution control measures, means, and techniques, including “economic incentives, such as marketable permits or auctions of emissions allowances.” Congress’s decision to delegate in expansive terms and to model the § 111(d) program on § 110’s NAAQS attainment program indicate that it intended for § 111(d) to provide EPA with significant regulatory authority.

The structure of the Clean Air Act confirms that § 111(d) is not a mousehole, but an essential component of the Act’s comprehensive framework for controlling existing source emissions. The report on one Senate version of the Clean Air Act noted that the drafters sought to establish a regulatory framework with “no gaps” in its coverage of existing source emissions. Reflecting its understanding that there were “three general categories” of air pollutants, Congress enacted three different programs to control existing source emissions. As EPA explained it (subscription only), the NAAQS program (CAA §§ 108–10) was designed to control emissions of air pollutants known to affect ambient air quality, the HAP program (CAA § 112) was designed to control emissions of air pollutants known to cause the most severe health effects, and § 111(d) was designed to control all other dangerous air pollutants. The scant historical use of § 111(d) does not indicate that the provision is insignificant; it simply reflects the fact that every major air pollution problem EPA has previously encountered could be adequately addressed under the NAAQS or HAP programs (this has been pointed out in an article by Nordhaus and Gutherz).

The statutory context provides additional evidence that Congress understood § 111(d) to be a significant delegation of regulatory authority. § 317, enacted in 1977, requires EPA to perform an economic impact assessment before promulgating or revising regulations under seven provisions of the Clean Air Act, including “any regulation under § [1]11(d).” An assessment under this provision must contain an analysis of, inter alia, “the potential inflationary or recessionary effects of the standard or regulation,” “the effects on competition of the standard or regulation with respect to small business,” “the effects of the standard or regulation on consumer cost,” and “the effects of the standard or regulation on energy use.” The fact that Congress required EPA to study the macro-economic effects of § 111(d) regulations indicates that Congress understood that this statute was no mousehole.

The text, structure, and statutory context all point to one conclusion: § 111(d) is a major grant of regulatory authority, and the Clean Power Plan fits well the overall design. If the Plan is an elephant, then § 111(d) is a circus train.

Want more elephants? David Baake has a forthcoming article in the Environmental Law Reporter and another post up on the blog of the American Constitution Society.