Category: Print Articles

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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Utility Air Regulatory Group v. EPA Symposium

Smokestack PhotoIn Utility Air Regulatory Group v. EPA, the Supreme Court largely upheld the U.S. Environmental Protection Agency’s regulation of greenhouse gases under the Clean Air Act’s Prevention of Significant Deterioration program for new or modified major stationary sources of air pollution. Although the Court rejected the Environmental Protection Agency’s claim that it was statutorily compelled to consider a source’s greenhouse gas emissions as triggering the Prevention of Significant Deterioration program’s permitting requirements, it held that sources already subject to the program based on their emissions of other pollutants could then be required to apply Prevention of Significant Deterioration pollution-control technology to their greenhouse gas emissions as well. In this Symposium, eight authors explore the Court’s decision and consider its implications for the Environmental Protection Agency’s authority to regulate greenhouse gases under the Clean Air Act.

Cecilia Segal

Climate Regulation Under the Clean Air Act in the Wake of Utility Air Regulatory Group v. EPA: Introduction
Cecilia Segal
Why I Worry About UARG
Jody Freeman
Text in Context: The Fate of Emergent Climate Regulation After UARG and EMEHomer
Ann E. Carlson and Megan M. Herzog
The Opinion Assignment Power, Justice Scalia’s Un-Becoming, and UARG‘s Unanticipated Cloud over the Clean Air Act
Richard J. Lazarus
UARG—Not a Chef d’Oeuvre of Opinion Writing
Craig N. Oren
Anti-Regulatory Skewing and Political Choice in UARG
William W. Buzbee
But What About Texas? Climate Disruption Regulation in Recalcitrant States
Thomas O. McGarity
Toward a More Rational Environmental Policy
Richard L. Revesz