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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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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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The Health Costs of Plastic Grocery Bag Bans

Many jurisdictions have implemented bans or taxes on plastic grocery bags based on environmental concerns. In 2007, San Francisco enacted a county-wide ban that included large grocery stores and drugstores. Los Angeles, Palo Alto, and other cities in California have followed suit.

In research carried out at PERC this summer, Jonathan Klick, a PERC Lone Mountain Fellow, argues that reusable grocery bags contain potentially harmful bacteria, especially coliform bacteria such as E. coli. Klick finds that, in the wake of San Francisco’s ban, deaths and ER visits related to these bacteria spiked as soon as the ban went into effect. For more on this ongoing research, watch our interview with Klick above.

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Q&A with Matthew Turner on Road Congestion and Transportation Policy

It’s been another busy summer at PERC, with our summer fellowships bringing together an all-star cast of scholars to Montana to research topics relating to free market environmentalism. This week we continue our Q&A series with economist Matthew Turner, a leading expert on road congestion and transportation policy.

Matthew Turner is a 2012 PERC Julian Simon Fellow and professor of economics at the University of Toronto. His research focuses on the economics of land use and transportation. We thank Matthew for taking time to answer our questions. For more PERC Q&As, visit the series archive.

Q:  At your latest PERC workshop you presented new research, co-authored with Victor Couture and Gilles Duranton, entitled “Speed.” What aspect of speed are you looking at and why is it important?

A:  Bakeries in the Soviet Union used to hand out bread for free to the first in line while those at the back wait for the next batch. This was wasteful. It meant time was spent waiting that could otherwise be used for something else, and it gave bread to people with the most time on their hands rather than to the hungriest or the hardest working. We allocate highway space in much the same way. The commuter who arrives on the road at 7:00am gets to travel, but the one who arrives at 7:30am needs to waits in a traffic jam until road capacity becomes available. Just as for the old Soviet bakery, this leads to a lot of time wasted in traffic jams and assigns scarce rush-hour capacity to people willing to wait in traffic, who might not be the people who value rush hour travel most highly.

In our research we are try to understand the determinants of  driving speed in order to estimate the value of time lost to waiting in traffic. Since road travel, one way or another, accounts for about 18% of gdp, the value of this waste is a big number. We also want to develop a basis for making guesses about what a good road pricing system would look like.

Q You claim there are sizable welfare gains to be had from more sensible transportation policies? What sorts of policies are we talking about? Taxes on driving?

A:  Our research suggests that the failure to price access to roads leads Americans to waste tens of billions of dollars worth of time each year sitting in traffic. Yet roads are congested only part of the time and even our biggest and busiest cities have unused road capacity off peak. If we impose tolls on congested roads at congested times, we give people an incentive to shift their travel to an uncongested time when we have surplus road capacity. This saves people from waiting in traffic and will likely increase the capacity of our road network.

QAre there areas where congestion pricing has worked? Could it be implemented on a wide scale in the United States?

A:  Stockholm, London, and Singapore, and a handful of U.S. roads and bridges have congestion pricing programs. In these places we see big increases in travel speed in response to pretty small charges for peak hour road use. With that said, the devil is in the details. So far, these programs are expensive to administer and it is easy to imagine ways that they could create problems. Rather than aiming for wide scale application to the United States we ought to encourage pilot programs in congested cities like New York, Miami, Seattle, Boston and Portland. As we gain experience administering congestion pricing programs we can apply them more widely.

Q In earlier research you find that widening and building more roads actually creates more traffic. What is “The Fundamental Law of Road Congestion” and what are its implications for transportation policy?

A:  In this project we examine the relationship between the stock of highways and arterial roads in large U.S. cities and the total amount of road travel in these cities. More precisely, it examines the relationship between a city’s total lane kilometers of highway and arterial road and total miles driven within the city in a year. We find that a one percent increase in road lane kilometers causes almost exactly a one percent increase in driving. We also find that changes to the stock of buses in a city’s public transit network do not affect driving.

This means that we should not expect either road or transit expansions to alleviate traffic congestion in the long run. The only policy that we know to be effective at reducing traffic congestion is congestion pricing.

QWhen might investments in public transportation or road building be worthwhile?

A:  Even though road and transit expansions probably won’t reduce congestion on our roads and highways, they will allow more people to move around. We want to evaluate transportation infrastructure on the basis of the value of these extra trips. If a new subway line allows an extra 50,000 people to work downtown, we need to decide if the extra economic activity downtown justifies the cost of the train. The same is true of road expansions. We don’t have good answers to this question yet. Generally, it looks like expansions of highway and subway capacity are so expensive that it is going to be difficult to pass this test, especially in the countryside where rural state senators like to send federal highway funding. On the other hand, making investments that squeeze more capacity out of existing roads and tracks in big cities is going to be easier to justify.

For more from Matthew Turner on transportation policy, read his article in the Fall 2010 edition of PERC Reports.

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Does Burning Ivory Save Elephants?

by Michael ‘t Sas-Rolfes

This week marks the 62nd meeting of the Standing Committee of the Convention on International Trade in Endangered Species (CITES), taking place in Geneva, Switzerland. To coincide with this meeting, the World Wildlife Fund has released a “Wildlife Crime Scorecard” report which lists 23 countries in Asia and Africa that it claims could all do more to enforce trade bans intended to protect tigers, rhinos, and elephants.

But what about WWF’s scorecard? Unlike the governments it assesses, WWF has specifically purported to protect endangered species since its inception in 1961. It has also mostly endorsed the CITES trade ban approach to saving tigers, rhinos, and elephants for more than the last two decades, but the results of this have been unimpressive. Tiger numbers have plummeted, as have rhino numbers in all but a handful of former range states; elephants have fared slightly better since the ivory ban, but poaching is on the rise again. So while WWF can claim some individual successes with certain localized conservation projects, its broader policies on wildlife trade deserve closer scrutiny to see if they make sense.

For example, last month WWF commended the government of Gabon for burning a stockpile of almost 5 tons of confiscated ivory, estimated to represent the equivalent death of 850 elephants. Presumably the architects of this event think they can repeat the performance of the Kenyan government, which famously burned a pile of ivory (and rhino horn) back in 1989.

Kenya’s dramatic gesture had three effects:  First, as a media stunt it caught the attention of many people and helped to stigmatize the use of ivory products in the West. Second, this in turn appeared to reduce consumer demand (and therefore prices and the incentive to poach elephants). And third, Kenya was able to leverage this event as a means to raise significant donor funding.  (The funding benefits did not endure and other African elephant range states did not benefit in this way; instead many had to bear the cost of forgone ivory sales harvested from sustainably-managed populations.)

That was then, this is now. Ivory demand in East Asian markets has a deeper cultural imprint and was far less impacted by any stigma effect from the 1989 ban. With the rising affluence of East Asian consumers, black market prices and elephant poaching levels are increasing significantly.

Economists may disagree about many things, but one thing we do agree on is that if you reduce the supply of a product without a corresponding reduction in demand, prices will rise. In a 1990 peer-reviewed journal article*, economist Ted Bergstrom explains clearly why: If the goal is to protect threatened species, it does not make sense to destroy confiscated stockpiles, but rather to sell them back into the market to satisfy demand and restrain prices. If trade is already banned and consumers are still buying ivory, there is no reason to believe that reducing the supply will change their preferences. So burning ivory stockpiles at this time does not seem like such a great idea. Although intended to send out a message about the acceptability of buying ivory, this gesture may simply send out a different message to the market: that ivory is an increasingly scarce resource worthy of speculative investment.

WWF’s approach of constricting supplies is not restricted to elephants. It adopts similar policies toward tiger and rhino products. The same principles apply here and the black market values for such products only appear to be rising over time, with disastrous consequences for wild populations.

* Ted Bergstrom. “On the Economics of Crime and Confiscation.” Journal of Economic Perspectives 4.3 (1990): 171-178.

Michael ‘t Sas-Rolfes is an environmental economist based in South Africa and a 2012 PERC Lone Mountain Fellow. He is the author of Who Will Save the Wild Tiger? (1998, PERC Policy Series), a contributor to Tigers of the World: The Science, Politics, and Conservation of Panthera tigris (2010, Academic Press), and author of the recent PERC Case Study “Saving African Rhinos: A Market Success Story.” For more, visit his website: rhino-economics.com.

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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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Restore to what?

I’m in rainy Seattle to give a speech on the Green Tea Party at an environmental conference. Ads for the hotel boast that it has double shower heads, which had me pondering the following:

We pass laws forcing people to install restricted flow shower heads. The hotel responds by installing a double shower head and posts a sign saying “restore our world” by turning off one of the heads to save water, our “precious resource.” We use time and money — precious resources — to pass the laws; we use capital — a precious resource — to install double shower heads that deliver more water; and we print signs — using precious resources — to restore our world without asking the obvious question: Restore to what? And all of this is to save water which falls from the heavens, runs into lakes and streams, is diverted into pipes delivering water to the shower heads, cleans our bodies, runs down the drain, and returns to the watershed. To be sure, the shower heads, the water purification systems, the delivery systems, and so on use precious resource which might be saved, but how can we save water?

See the Green Tea Party pocket guide [pdf] for some market-based solutions to water allocation.

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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.