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Dispatches from “Conservative Visions of Our Environmental Future”

Today I am at Duke to participate in a conference on “Conservative Visions of Our Environmental Future,” sponsored by the Duke Environmental Law and Policy Forum, Nicholas Institute for Environmental Policy Solutions, Nicholas School for the Environment, Duke Federalist Society, Duke College Republicans and the Energy & Enterprise Initiative. The conference is being live streamed here, and I’ll be offering comments on the proceedings below.  [Read more…]

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Sackett v. EPA and the Due Process Deficit in Environmental Law

Last term, in Sackett v. Environmental Protection Agency, a unanimous Supreme Court rejected the EPA’s effort to deny private landowners an opportunity to challenge the agency’s assertion of jurisdiction over their land. The Sacketts wanted to build a home in a subdivision, but the EPA concluded the Sacketts’ land to contain jurisdictional wetlands under the Clean Water Act and issued an order requiring the Sacketts to cease construction of their home and undertake specified restoration efforts. Failure to comply with the order was itself punishable with substantial fines, in addition to any for violating the CWA. The Sacketts sought judicial review of the order, on both statutory and constitutional grounds, to no avail in the lower courts. They prevailed in the Supreme Court, however, completely on statutory grounds, leaving the due process questions to another day.

The Court based its decision on the Administrative Procedure Act’s presumption in favor of judicial review of final agency actions and the CWA’s failure to expressly preclude such review. But what if the CWA had precluded review? Would the Sacketts have been entitled to judicial review under the Due Process Clause? And more broadly, given the uncertainty surrounding the scope of federal wetland regulation, and the lack of fully enforceable jurisdictional regulations, does current CWA enforcement more generally comport with the principles of due process? I explore some of these questions in a forthcoming article in the Cato Supreme Court Review“Wetlands, Property Rights, and the Due Process Deficit in Environmental Law.” The abstract is below.

In Sackett v. Environmental Protection Agency a unanimous Supreme Court held that private landowners could seek judicial review of an Administrative Compliance Order issued by the Environmental Protection Agency alleging that their land contained wetlands subject to regulation under the Clean Water Act. The Court’s decision rested on statutory grounds, but the same result may have been dictated by principles of due process. Under the CWA, federal regulators have asserted authority over waters and dry lands alike and sought to expand federal jurisdiction well beyond constitutional limits. Under existing regulations, landowners have little notice or certainty as to whose lands are covered, under what authority, or with what effect. As a consequence, federal wetlands regulations, as currently practiced, violates important due process principles.

Cross-posted at The Volokh Conspiracy.

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Is Organic Food Healthier or Safer?

A new study fails to find scientific support for claims organic food is healthier or safer than conventional alternatives and everyone acts as if this is a surprise. It shouldn’t be. Scientific research has fairly consistently failed to validate the claimed superiority of organic food, as I’ve noted in prior posts over the past ten years (see, e.g., herehere, and here). Organic foods do not consistently show higher nutrient levels than conventional foods, nor are there even clear environmental advantages. Organic farming uses less energy and fewer chemicals, but it also tends to be more expensive and requires more land — meaning that a widescale shift to organic production would increase food costs and require putting more acres under plow, with consequent negative effects on species habitat.

For this latest study, published in the Annals of Internal Medicine, Stanford researchers conducted a meta-analysis of over 200 studies looking at the differences between organic and conventional foods, and concluded “the published literature lacks strong evidence that organic foods are significantly more nutritious than conventional foods.” Organic foods tended to have lower pesticide residues and were less likely to have antibiotic-resistant bacteria, but the researchers concluded the differences were not significant enough to have any meaningful health impact. If organic food truly is healthier — and it may be — the existing scientific literature cannot (yet?) support such claims, particularly as applied to organic foods across the board. There may be specific foods, however, for which organic production may make a difference (or for which organic production methods tend to correlate with other practices that produce positive results).

The bottom line is eat organic foods if you like. Just don’t believe there’s any scientific basis for claiming you will be healthier as a result. As the paper’s senior author, Dena Bravata, explains: “There isn’t much difference between organic and conventional foods, if you’re an adult and making a decision based solely on your health.”

For more on the study, here are reports from the NYTAP, and NPR.

Cross-posted from The Volokh Conspiracy.

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How Not to Label Biotech Foods

In November, Californians will vote on Proposition 37, a ballot initiative to impose a mandatory labeling requirement on all foods produced with or from genetically modified organisms (GMOs). For reasons I discuss in this New Atlantis article, this requirement is unnecessary, unwise and potentially unconstitutional.

The effort has been endorsed by numerous progressive organizations and the California Democratic Party. Of note, those who usually police the misuse or politicization of science have been strangely quiet about the misleading and inaccurate scientific claims made by Prop. 37 proponents. Although the proposition warns of “adverse health consequences” from genetic engineering of foods, there is not a single documented case of adverse health consequences due to the use of GMOs. Yet about traditional crop-breeding techniques, we can say no such thing. It’s no wonder that the National Academy of Sciences has issued numerous reports concluding that the use of modern genetic modification techniques, in themselves, have no bearing on the relative safety of a food product. What was done to a specific GMO matters more than whether specific modification techniques were used.

It is even misleading to single out crops and other organisms modified by modern genetic modification techniques as “genetically engineered.” Many common crops are “genetically engineered” in that they are the result of direct human modification. Corn, for example, does not exist naturally. It was “engineered” by humans, albeit using less precise breeding methods centuries ago.

The organizers of the effort claim consumers have a “right to know” whether their foods contain GMOs. But nothing stops consumers from obtaining such information. Organic producers and others who wish to cater to those who dislike GMOs are free to label their products accordingly (and, in my view, should be able to do so without some of the excessive disclaimers urged by the FDA). Absent evidence of a potential health risk, there is no reason for the government to mandate GMO labels. Such labels are not necessary to protect consumers against misleading claims, and a proclaimed “right to know” does not constitute a substantial governmental interest.

Some consumers may want to know whether products contain GMOs, just as others may wish to know whether a product was made with union labor, a company’s executives donated to particular political candidates, or its products were blessed by shaman priestesses. Yet it must take more to justify compelling speech in the form of product labels. Were it otherwise, there is no end to what could be the subject of mandatory labeling requirements, and there would be no meaningful constitutional protection of compelled commercial speech.

Most existing labeling requirements can be justified on the grounds that they protect uninformed consumers from potential adverse impacts. Ingredient labels, for example, protect those with allergies or specific dietary needs. GMO labels, on the other hand, do no such thing. Rather they stigmatize products, suggesting there is something significant, or even potentially wrong, with a product that was produced in this way, even if there is no scientific basis for making such a claim. Some consumers may have moral or other objections to GMO products, and that is their right. Such consumers are free to seek out producers who will make products in accord with their preferences. But GMO opponents should not have the right to force others to modify product labels, at their own expense, just to satisfy one group’s set of subjective value preferences.

Does this mean there will be no GMO labels? Not at all. There is no requirement that producers identify whether products are “organic” or “kosher,” and yet such labels proliferate. Where such information is likely to influence consumer behavior, producers have ample incentives to provide the information consumers want. That is, those producers whose products are GMO-free have every incentive to disclose, and perhaps even advertise, this fact. Such disclosure is sufficient to let those consumers who oppose GMOs shop accordingly without imposing the cost of such preferences on others.

Cross-posted from The Volokh Conspiracy.

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En Banc Petitions in D.C. Circuit Greenhouse Gas Litigation

Earlier this month, several of the parties challenging the Environmental Protection Agency’s decision to regulate greenhouse gases under the Clean Air Act filed petitions for panel rehearing or rehearing en banc in Coalition for Responsible Regulation v. EPA, in which the U.S. Court of Appeals for the D.C. Circuit turned away all of the state and industry challenges to the EPA’s rules. I summarized the court’s decision here, and provide greater background on the EPA’s regulations and associated policy issues here.

The en banc petitions stress the unusual magnitude and importance of the regulations at issue, as well they should, but that’s often not enough for en banc review. Nor are protestations that the original panel muffed the merits (case in point), particularly where (as here) most of the issues could be resolved on traditional administrative law grounds. The industry argument that the panel erred in refusing to force the EPA to consider potential adaptation to climate change, for example, is a non-starter. Even if the panel got this question wrong (and I don’t believe it did), that’s not the sort of question that is worthy of en banc review.

There is one issue, however, that could well be en banc-worthy: the panel’s conclusion that industry petitioners lacked standing to challenge the EPA’s so-called “tailoring rule.” While the strict application of Article III standing requirements is nothing new on the D.C. Circuit, here the panel applied the standing rules to prevent the object of a government action from challenging the lawfulness of that action, on the grounds that the harm would not be redressable by a favorable ruling on the merits. Though a plausible reading of the relevant standing precedents, this is a holding that could insulate all manner of regulatory action from judicial review, and expand the already troubling, de facto agency authority to issue “waivers” or otherwise disregard applicable legal requirements.

A bit of background: The Clean Air Act requires the EPA to impose various regulatory requirements on stationary sources that have the potential to emit more than 100 or 250 tons per year of regulated pollutants. (The specific threshold depends on the type of facility.) As applied to traditional pollutants, these thresholds catch thousands of facilities. But applied to greenhouse gases — carbon dioxide in particular — they catch millions. This, the EPA claims, would be an “absurd” result because it would impose an insuperable burden on the EPA and cooperating state agencies. To remedy this, the EPA sought to “tailor” the Act’s requirements by substituting numerical thresholds of its own devising for those contained in the statute itself. So with a wave of its administrative hand, the EPA substituted 75,000 and 100,000 for 100 and 250, and reserved the right to lower the threshold at its discretion in the future.  [Read more…]

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Why Gasoline Prices Are Volatile

Andrew Morriss and Donald Boudreaux have an op-ed in today’s WSJ explaining why gasoline prices have become more volatile. The short version: Boutique fuel requirements have balkanized the gasoline market, magnifying the effects of local supply disruptions.

For most of the 20th century, the United States was a single market for gasoline. Today we have a series of fragmentary, regional markets thanks to dozens of regulatory requirements imposed by the federal Environmental Protection Agency (EPA) and state regulators. That’s a problem because each separate market is much more vulnerable than a national market to refinery outages, pipeline problems and other disruptions. . . .

The role of regulators in fuel formulation has become increasingly complex. The American Petroleum Institute today counts 17 different kinds of gasoline mandated across the country. This mandated fragmentation means that if a pipeline break cuts supplies in Phoenix, fuel from Tucson cannot be used to relieve the supply disruption because the two adjacent cities must use different blends under EPA rules.

To shift fuel supplies between these neighboring cities requires the EPA to waive all the obstructing regulatory requirements. Gaining permission takes precious time and money. Not surprisingly, one result is increased price volatility.

Another result: Since competition is a key source of falling gas prices, restricting competition by fragmenting markets reduces the market’s ability to lower prices.

While most of the fuel standards were adopted in the name of the environmental protection, many are actually the result of special interest pleading. Producers of various products, ethanol in particular, sought fuel content mandates or performance requirements that would benefit their particular product. (I detailed part of this history in “Clean Fuels, Dirty Air,” in Environmental Politics: Public Costs, Private Rewards.) Worse, some of the content requirements are irrelevant for new cars due to modern pollution control equipment. Federally imposed boutique fuel requirements have outlived whatever usefulness they ever had.

Cross-posted at The Volokh Conspiracy.

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Could the Health Care Decision Hobble the Clean Air Act?

Sackett v. EPA was the big environmental case from this past Supreme Court term, but the Court’s decision in NFIB v. Sebelius, the health care case, could actually turn out to have the larger effect on environmental law.  While most commentators on NFIB focused on the Commerce Clause challenge to the individual mandate, the arguments against the health care reform law’s provisions expanding Medicaid turned out to be more consequential, as seven justices concluded that in trying to create incentives for states to expand Medicaid, the health care reform law went too far.  This aspect of the Court’s ruling could also have a significant impact on environmental law.

As part of the Patient Protection and Affordable Care Act, Congress sought to expand Medicaid to cover all adults at or below 133 percent of the poverty line.  As states are tasked with implementing Medicaid, Congress had to make it worth their while.  So in addition to offering generous funding (at least in the beginning), the PPACA also threatened to cut off all Medicaid funding to any state that did not go along with the expansion.  In effect, Congress made the states an offer they couldn’t refused, which is one reason over twenty states sued.

In NFIB a majority of the Supreme Court found Congress’ offer to be unconstitutional.  Congress’ use of conditional spending, seven justices concluded, crossed the line from inducement to coercion, and was constitutionally impermissible.  In the process, the Court reaffirmed that the Constitution creates a federal government of limited and enumerated powers, and that the federal government’s spending power is subject to judicially enforceable limits.

The NFIB ruling matters for environmental law because conditional spending is a staple of modern environmental law.  Most of the major federal environmental statutes adopt a “cooperative federalism” model under which states are encouraged to implement federal environmental programs.  State cooperation is encouraged through, among other things, the promise of federal financial support and, in some cases, the threat to withhold money for other programs. Under the Clean Air Act, for example, states that fail to adopt federally approved air pollution control programs risk losing federal highway funding.  This condition, combined with the threat of direct federal regulation, has been largely successful at inducing state acquiescence.  Yet after the Supreme Court’s NFIB decision, this arrangement may be unconstitutional.

The Clean Air Act would appear potentially vulnerable on several grounds.  First, the Clean Air Act conditions the receipt of money for one program (highway construction) on compliance with conditions tied to a separate program (air pollution control).  This may be problematic because a majority of the Court thought Congress was trying to leverage state reliance on funding for one program (traditional Medicaid) to induce participation in another program (the Medicaid expansion).  While the money at stake under the Clean Air Act is far less – most states receive substantially less in highway funds than in Medicaid funds – highway funding is less directly related to air pollution control (particularly from stationary sources) than traditional Medicaid is to the Medicaid expansion.

Though highway funding is less than that for Medicaid, it still may be enough to raise constitutional concerns. Highway funds are raised from a dedicated revenue source in gasoline taxes and placed in the Highway Trust Fund.  For many states, federal highway funds represent the lion’s share of their transportation budget.  As a consequence, threatening to take highway funds may strike some courts as unduly coercive under NFIB.  In the 1980s the Supreme Court upheld conditioning five percent of a state’s highway funds on setting a 21-years-old drinking age.  Under the Clean Air Act, however, a state can lose all highway funds, save those that will reduce emissions or are necessary for traffic safety, for failure to adopt a complete pollution control plan that satisfies the federal EPA.

The Court in NFIB also stressed that conditional grants of federal funds operate much like a contract, and that the parties are limited in their ability to unilaterally revise the terms.  This could expose another vulnerability in the Clean Air Act because while the statutory requirements don’t regularly change, what states must actually do to comply with the Clean Air Act’s terms do. The requirements for state pollution control plans are constantly changing, as the EPA tightens or otherwise revises federal air quality standards and additional pollutants become subject to Clean Air Act regulation.  Were this not enough, the recent inclusion of greenhouse gases as pollutants subject to regulation under the Act has radically altered states’ obligations, such that states will now have to do many things they could not have anticipated when the Clean Air Act was last revised in 1990.

Many states are already chafing under the Clean Air Act’s requirements.  The NFIB decision may give them a tool to relieve the burden.  Specifically, the Court’s decision to limit the federal government’s authority to place conditions on the receipt of federal funds may offer states some relief from Clean Air Act requirements.

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The D.C. Circuit’s Greenhouse Gas Decision

Today’s decision by the U.S. Court of Appeals for the D.C. Circuit in Coalition for Responsible Regulation v. EPA is quite significant for environmental law. The court turned away the state and industry challenges to the EPA’s decision to begin regulating greenhouse gases under the Clean Air Act. The only element of the decision that is at all surprising is the court’s dismissal of the challenges to the EPA’s “tailoring rule” due to a lack of standing.

On the merits, the court rejected challenges to the EPA’s determination that the emission of greenhouse gases causes or contributes to air pollution that which may be reasonably anticipated to endanger public health or welfare (the “endangerment finding”) and rejected claims that the EPA’s new standards for GHG emissions from mobile sources were arbitrary and capricious. This was to be expected. As I’ve noted before, judicial review of these sorts of decisions is highly deferential, and the EPA did not have to do much to support its decision. Even if the industry challengers had been able to convince the court that climate change is not that big of a deal, this would not have been enough to overturn the endangerment finding, provided the EPA gave a sufficient explanation of its conclusions — which it did.

The more interesting parts of the opinion concern whether the petitioners could challenge the EPA’s decision to regulate stationary source GHG emissions generally, and the EPA’s adoption of the tailoring rule in particular. On the former question, the court concluded that industry petitioners could challenge a decades-old EPA determination that the regulation of a pollutant from mobile sources under Section 202 of the Act triggers stationary source regulations. This was because there were some plaintiffs who had never-before been subject to stationary source regulation under the Clean Air Act because it was not until carbon dioxide was treated as a pollutant that these plantiffs emitted enough of a regulated substance to fall within the Act’s controls.

This small victory on ripeness was but a prelude to a loss on a larger question: Whether large emitters of greenhouse gases could challenge the EPA’s decision to forego regulation of smaller sources. No, the court concluded, because the industry petitioners did not satisfy the requirements for Article III standing to challenge the EPA’s failure to regulate someone else. However great the injury some industry groups may suffer from GHG regulation, the court reasoned, forcing the EPA to regulate additional sources would provide no meaningful redress. It does not matter that the EPA’s tailoring rule flatly contradicts the plain text of the Clean Air Act and represents a dramatic assertion of agency discretion over a detailed, legislatively crafted scheme. If there’s no standing, the suit cannot proceed.

This decision will be the last stop for most, if not all, of the industry challenges to the GHG rules. En banc and cert petitions may get filed, but I can’t see either the full D.C. Circuit or the Supreme Court having much interest in the endangerment finding or the EPA’s mobile source rules. If any claim has a chance to go on, it would be the standing argument. If there’s an issue in this case that could catch the Supreme Court’s attention, this would be it. Among other things, it could giver the Supreme Court the opportunity to address how recent standing decisions affect standing claims based upon alleged competitive harm (i.e. the harm suffered by company A due to the government’s favorable treatment of company B). Still, I would not bet on it. In all likelihood those who oppose GHG regulation under the Clean Air Act will have to direct their attention to Congress. They’re done in the courts.

Cross-posted at the Volokh Conspiracy.

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Is the Ninth Circuit Due for Environmental Correction?

Will 2012 provide a repeat of 2012? Specifically, will the Supreme Court’s October 2012 term find the Supreme Court repeatedly reversing the U.S. Court of Appeals for the Ninth Circuit in environmental cases as it did in the October 2008 term? In 2008, the Supreme Court heard an unusually high number of environmental cases, six: Winter v. Natural Res. Def. Council, Summers v. Earth Island Inst.Entergy Corp. v. Riverkeeper Inc.Coeur Alaska, Inc. v. Se. Alaska Conservation Council,Burlington N. & Santa Fe Ry. Co. v. United States and Shell Oil Co. v. United States (the latter two of which were consolidated). In all of these cases, the side favored by environmental groups had prevailed below, and in all of these cases the Supreme Court reversed. Equally notable, however, was that all but one of these cases (Entergy) came from the Ninth Circuit. To some the Supreme Court’s October 2008 term showed the Roberts Court lacked sympathy for environmentalist positions. To others, it was further evidence the Ninth Circuit was out of step on environmental issues.

2012 could provide a repeat of 2008 because the Supreme Court is being asked to grant cert in several cases from the Ninth Circuit that are potential outliers in environmental law.  As Richard Frank notes at Legal Planet, the Court will consider the such cases in tomorrow’s conference – Pacific Merchant Shipping Assn. v. GoldsteneGeorgia-Pacific West, Inc. v. Northwest Environmental Defense Center (along with Decker v. Northwest Environmental Defense Centeranother petition from the same case), and Los Angeles County Flood Control Dist. v. Natural Resources Defense Council –  all three of which have been identified among SCOTUSBlog’s “Petitions to Watch.”   Of note, the Solicitor General has recommended against cert in all three cases even though the Department of Justice believes the Ninth Circuit was wrong all three times.  According to the SG, each decision was wrong, but not cert-worthy.

In the normal course of affairs, an SG brief recommending against cert is a likely indicator that the Supreme Court will deny certiorari.  Yet that has not been the practice of late in environmental cases.  The Supreme Court has taken quite a few environmental cases in which the federal government lost below but nonetheless urged the Court to take pass, including EntergyCoeur Alaska,Monstanto v. Geerston Farms, and Environmental Defense v. Duke Energy.  It’s almost as if the Roberts Court does not trust the judgment of the SG’s office as to whether environmental cases are cert worthy.

Among the cases on the docket for tomorrow, Georgia-Pacific West v. Northwest Environmental Defense Center is worth some attention. In this case, the Ninth Circuit rejected the EPA’s judgment that stormwater runoff from timber roads do not need NPDES permits under the Clean Water Act.  This decision overturned years of settled practice, and industry’s cert petitions have been joined by numerous state and local government amici.  The petition has even gotten a boost from a somewhat unlikely source: Judge Milan Smith of the Ninth Circuit.  In a flowery en banc dissent in another case, Karuk Tribe of California v. USFS, Judge Smith identified the Ninth Circuit’s decision on logging roads as one of several wrong-headed opinions from his court.  Given the timing of his dissent (excerpted below the fold), it’s hard not to read it as a cert petition from the bench.  Monday we should learn if the Supreme Court heeded Judge Smith’s call — and perhaps whether the Ninth Circuit is due for another environmental correction.  [Read more…]

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Support Subsidies, Pay Less for Subsidized Service

Gary Leff reports on a new Amtrak program whereby those who join the National Association of Railroad Passengers, a D.C.-based “advocacy organization” that supports greater Amtrak subsidies, get special discounts on Amtrak tickets. Leff comments:

Whatever you think of government funding for train travel in the United States, is it problematic that a government corporation will give people discounts if they pay to join an organization that will lobby the government for more subsidies?

Put another way, Americans who pay to support more subsidies get charged less to travel on subsidized trains than those who oppose the subsidies.

Cross-posted at the Volokh Conspiracy.

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Anti-Market, Anti-Environmental Fishery Policy

There is substantial theoretical and empirical evidence that property-based management schemes, such as catch-shares, prevent fishery collapse and ensure sustainability. The creation of property rights in ecological resources is also a principled conservative alternative to centralized regulation. Yet somehow a majority of House Republicans were bamboozled into voting to bar funding for further implementation of catch share funding along the Atlantic Coast and in the Gulf of Mexico. By supporting this amendment, offered by Reps. Steve Southerland (R-FL) and Ryan Grimm (R-NY), and endorsed by Rep. Barney Frank (D-MA), a majority of House Republicans managed to oppose property rights, market-based reforms, and environmental protection all at once.

Ronald Bailey has more here.

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EPA to Release More Greenhouse Gas Regulations

The Washington Post reports the Environmental Protection Agency will release proposed regulations governing the emissions of greenhouse gas emissions from power plants this week, perhaps as early as today.  As described by the Post, this New Source Performance Standard regulation could put a halt to the construction of new coal-fired power plants unless and until carbon sequestration or some other GHG-emission-reducing technology becomes economically viable.

The proposed rule — years in the making and approved by the White House after months of review — will require any new power plant to emit no more than 1,000 pounds of carbon dioxide per megawatt of electricity produced. The average U.S. natural gas plant, which emits 800 to 850 pounds of CO2 per megawatt, meets that standard; coal plants emit an average of 1,768 pounds of carbon dioxide per megawatt.

Industry officials and environmentalists said in interviews that the rule, which comes on the heels of tough new requirements that the Obama administration imposed on mercury emissions and cross-state pollution from utilities within the past year, dooms any proposal to build a coal-fired plant that does not have costly carbon controls.

“This standard effectively bans new coal plants,” said Joseph Stanko, who heads government relations at the law firm Hunton and Williams and represents several utility companies. “So I don’t see how that is an ‘all of the above’ energy policy.”

The rule provides an exception for coal plants that are already permitted and beginning construction within a year. There are about 20 coal plants now pursuing permits; two of them are federally subsidized and would meet the new standard with advanced pollution controls.

These new regulations are but one piece of the surge in GHG regulations the EPA is adopting under the Clean Air Act as a consequence of Massachusetts v. EPA.

Originally posted at The Volokh Conspiracy.