CPR Archive for Daniel Farber

The Next Justice and the Fate of the Clean Water Act

by Daniel Farber | April 05, 2016

Every once in a while, we get reminded of just how much damage the conservative Justices could wreak on environmental law. Last week, Justice Kennedy created shock waves with a casual comment during oral argument. In a case that seemed to involve only a technical issue about administrative procedure, he dropped the suggestion that the Clean Water Act just might be unconstitutionally vague. It didn't seem to faze him that such a ruling would wipe out a statute that has been on the books for over forty years and leave the nation with no protection against water pollution and wetlands destruction. And remember, this is the supposedly most "moderate" conservative Justice on the Court.

This is a truly radical suggestion. Every now and then, a defendant in an enforcement case will argue that the law was unconstitutionally vague under the circumstances of the case. A quick computer search reveals that such a claim has been made by someone about every other year since the law was passed in 1972. Each time, the federal courts have rejected the claiming, finding plenty of evidence that the defendant was on notice of the possible illegality of the conduct. In other words, the vagueness argument has been something of a desperation claim that has consistently fallen on its face. Now this far-fetched legal argument is suddenly being given new life by a Supreme Court Justice. Admittedly, Kennedy was only making a suggestion. ...

Green Patches Deep in the Heart of Texas

by Daniel Farber | March 28, 2016
The Texas AG’s office seems to do little else besides battle against EPA, and Texas Senator Ted Cruz is in the vanguard of anti-environmentalism. Yet even in Texas there are some rays of hope. While Texas is attacking the Clean Power Plan, the city of Houston is leading a coalition of cities defending it. Other cities are taking action for non-environmental reasons. The city of Georgetown, Texas, for instance, has announced plans to become 100 percent renewable. Lest there be any misunderstanding, the ...

A Sea Change in Climate Politics?

by Daniel Farber | March 21, 2016
There was a surprise question about climate change at the last Republican debate. What was surprising wasn’t the question itself. Instead, it was the source of the question: Tomás Regalado, the Republican mayor of Miami. It turns out that this wasn’t a fluke. Regalado and the Republican mayor of Miami Beach have spoken out in an op-ed about climate change: “The overwhelming scientific consensus is that the rising sea levels are caused by the planet warming, that the burning of ...

Environmental Enforcement in the Age of Trump

by Daniel Farber | March 10, 2016
Many thought that the BP Oil Spill would lead to new environmental legislation, as happened after past environmental disasters. That didn’t happen. But something else did happen: BP paid $24 billion in civil and criminal penalties. In an era where any effort at government regulation is immediately denounced as a dire threat to liberty, there was nary a peep out of Republican politicians about these massive penalties. Nor do I hear Trump, Cruz, or Rubio defending Volkswagen from penalties. The moral is ...

Roberts Denies Mercury Stay

by Daniel Farber | March 03, 2016
Chief Justice Roberts turned down a request this morning to stay EPA’s mercury rule. Until the past month, this would have been completely un-noteworthy, because such a stay would have been unprecedented. But the Court’s startling recent stay of the EPA Clean Power Plan suggested that the door might have been wide open.  Fortunately, that doesn’t seem to be true. In some ways, a stay in this case would be even more shocking than the earlier one. Only the states, not industry, were ...

Unleashing the Lower Courts

by Daniel Farber | February 25, 2016
There’s already been a lot written about how Justice Scalia’s untimely death will affect pending cases, not to mention speculation about the possible nominees to replace him. Less attention has been given to the effect on the lower courts. Yet Justice Scalia’s departure gives liberal judges in lower courts more freedom than they’ve had in the past. Here, I’m specifically thinking of the D.C. Circuit and the Ninth Circuit, which between them are the most important forums for environmental litigation. ...

Justice Scalia and Environmental Law

by Daniel Farber | February 16, 2016
Scalia's decisions were almost unremittingly anti-environmental. Over the past three decades, Justice Scalia did much to shape environmental law, nearly always in a conservative direction.  Because of the importance of his rulings, environmental lawyers and scholars are all familiar with his work.  But for the benefit of others, I thought it might be helpful to summarize his major environmental decisions.  The upshot was to restrict EPA’s authority to interpret environmental statutes, make property rights a stronger bulwark against environmental protection, ...

Legacy Goods and the Environment

by Daniel Farber | January 28, 2016
The value of some goods like wilderness today depends on their futures. Normally, economists imagine, equal experiences become less valuable as they recede further into the future.  But some types of goods don’t have that kind of relationship with future experiences.  They can become more valuable as they extend farther into to the future. Take this blog post, for example.  I’m really happy that you’re reading it today.  But it will be even cooler if someone reads it ten years ...

Key Environmental Developments Ahead in 2016

by Daniel Farber | January 04, 2016
Here are seven of the most important developments affecting the environment. 2015 was a big year for agency regulations and international negotiations. In 2016, the main focal points will be the political process and the courts. Here are seven major things to watch for.  The Presidential Election. The election will have huge consequences for the environment. A Republican President is almost sure to try to roll back most of the environmental initiatives of the Obama Administration, undoing all the progress that has been ...

Does the Paris Agreement Open the Door to Geoengineering?

by Daniel Farber | December 15, 2015
If we're serious about keeping warming "well below" 2 degrees C, geoengineering may be necessary. The Paris agreement establishes an aspirational goal of holding climate change to 1.5 degrees C, with a firmer goal of holding the global temperature decrease “well below” 2 degrees C. As a practical matter, the 1.5 degrees C goal almost certainly would require geoengineering, such as injecting aerosols into the stratosphere or solar mirrors. Even getting well below 2 degrees C is likely to require ...

Law Schools Doing Good

by Daniel Farber | November 04, 2015
How Law Schools Serve the Public Most people probably think of law schools, when they think of them at all, as places that train future lawyers.  That’s true, and it’s important, but law schools do a lot more.  Faculty scholarship makes a difference — law review articles laid the foundation for many of the ideas now guiding judges (both on the Right and the Left).  But I’d like to focus here on another, more recent activity by law schools — the environmental ...

Addressing Externalities: A Modest Proposal

by Daniel Farber | October 22, 2015
How to make health and safety a personal priority for industry officials. According to economists, firms have little reason to take into account the cost of externalities — that is to say, the harms their activities may impose on others. The traditional solutions are damage remedies or taxes to transfer the financial cost to the industry, or regulation to force industries to limit their harmful activities. Why not try a more direct solution? Why not require owners and managers to ...

Guess Who Benefits from Regulating Power Plants

by Daniel Farber | September 08, 2015
The answer will surprise you. What parts of the country benefit most from the series of new EPA rules addressing pollution from coal-fired power plants?  The answer is not what you think. EPA does a thorough cost-benefit analysis of its regulations but the costs and benefits are aggregated at the national level. In a new paper, David Spence and David Adelman from the University of Texas break down these figures on a regional basis.  What they found may surprise you.  In fact, the areas benefitting ...

Clean Air versus States Rights

by Daniel Farber | June 09, 2015
A sleeper decision by the D.C. Circuit upholds federal air pollution authority. The D.C. Circuit’s decision last week in Mississippi Commission on Environmental Quality v. EPA didn’t get a lot of attention, despite having a very significant constitutional ruling.  Since the constitutional discussion doesn’t start until about page seventy, after many pages of scintillating discussion of matters like the reliability of private air pollution monitors and the meaning of the word “nearby”, I guess it shouldn’t be a surprise that the case has ...

The Case Against Sulking

by Daniel Farber | April 07, 2015
States will only lose out if they refuse to cooperate with the Clean Power Plan. Mitch McConnell has urged states to refuse to submit plans if the Clean Power Plan is upheld by the Court.  He has been accused of inciting lawless behavior on the part of state governments.  Let me come to his defense on this.  (How often do I get to do that??) The states are under no legal obligation to submit plans.  The Clean Air Act does not require them to ...

Econ101, Ideological Blinders, and the New Head of CBO

by Daniel Farber | March 09, 2015
There are troubling indications that Keith Hall lets ideology blind him to basic economics. Last week, in a post about the employment effect of regulations, I mentioned briefly that the new Director of the Congressional Budget Office, Keith Hall, had endorsed some questionable views on the subject.  A reader pointed me toward an additional writing that has done a lot to escalate my concerns.  There are disturbing signs about both Hall’s ideological bias and even his grasp of basic economics. This writing was part of an exchange ...

Accounting for Job Loss -- The consequences of doing so may not be what you'd expect

by Daniel Farber | March 02, 2015
The Republicans’ choice for head of the CBO, Keith Hall, spent some time at a libertarian think tank reportedly funded by the Koch brothers, where he wrote about the effect of regulation on employment. Hall argued that regulations cause unemployment (include indirect effects because of price changes), and that the costs of unemployment should be included in regulatory cost-benefit analysis. In principle, it seems right to include the special harms associated with job loss in cost-benefit analysis (not just for regulations but everything else too).  ...

Killer Coal

by Daniel Farber | January 23, 2015
Black lung has been the underlying or contributing cause of death for more than 75,000 coal miners since 1968, according to NIOSH, the federal agency responsible for conducting research on work-related diseases and injuries. Since 1970, the Department of Labor has paid over $44 billion in benefits to miners totally disabled by respiratory diseases (or their survivors). The annual death rate from mining accidents is 20-25 per 100,000, about six times the average industry. If you do the math, that means ...

Also from Daniel Farber

Daniel A. Farber is the Sho Sato Professor of Law, Director of the California Center for Environmental Law and Policy, and Chair, Energy & Resources Group, University of California, Berkeley.

The Next Justice and the Fate of the Clean Water Act

Farber | Apr 05, 2016 | Access to the Courts

Green Patches Deep in the Heart of Texas

Farber | Mar 28, 2016 | Environmental Policy

A Sea Change in Climate Politics?

Farber | Mar 21, 2016 | Climate Change

Environmental Enforcement in the Age of Trump

Farber | Mar 10, 2016 | Environmental Policy

Roberts Denies Mercury Stay

Farber | Mar 03, 2016 | Energy

The Center for Progressive Reform

455 Massachusetts Ave., NW, #150-513
Washington, DC 20001
info@progressivereform.org
202.747.0698

© Center for Progressive Reform, 2015