CPR Archive for Douglas Kysar

American Electric Power v. Connecticut: The Good News

by Douglas Kysar | April 20, 2011

Cross-posted from ACSblog.

In one of the most, er, hotly anticipated cases of its term, the Supreme Court yesterday heard arguments in the climate change nuisance suit of Connecticut v. American Electric Power. From the beginning of this litigation, pundits have questioned the plaintiffs’ decision to seek injunctive relief gradually abating the defendants’ greenhouse gas emissions. To critics, this form of relief – as opposed to, say, monetary damages – seems to highlight the complex and value-laden aspects of climate change as a policy problem, making judges more likely to dismiss the suit as lying beyond the ken of the judicial branch.

Tuesday's argument confirmed the pundits’ view, as even reliably liberal justices like Ruth Bader Ginsburg greeted the plaintiffs’ claims with palpable skepticism. Justice Ginsburg’s money quote, which is being cited around the blogosphere, came when she told the plaintiffs that their prayer for relief “sounds like the kind of thing EPA does.” Justice Kagan quickly piled on: “It sounds like the paradigmatic thing that administrative agencies do rather than courts.” Justice Breyer, ever the policy wonk, wondered aloud whether “the courts [can] set a tax” because, in his words, from “what I get from reading, these [carbon taxes] might be the best way to deal with the problem.”  (Answer: Courts set implicit harm taxes every day in the form of monetary tort awards. Bonus Answer: The Clean Air Act might well be a ...

As the VSL Turns...: In Value of a Statistical Life Debate at EPA, Moral Decisions Hide Behind Technical Jargon

by Douglas Kysar | March 24, 2011
A report yesterday from Inside EPA offered a fascinating overview of the agency’s struggle to update the way it assigns dollar values to the suffering and premature death that its regulations prevent. Seriously, as far as economic esoterica goes, this stuff is riveting. What’s more, your life may depend on it. Currently, EPA values each statistical human life saved by its rules at $7.9 million. This number is derived from so-called “wage-risk premium” studies that examine large data sets on employment and occupational ...

SCOTUS Grants Cert in AEP v. Connecticut; Why the Threat of Tort Liability Should Remain as Part of the Balance of Powers

by Douglas Kysar | December 06, 2010
The Supreme Court this morning granted certiorari in the case of American Electric Power Co. v. Connecticut, a common law nuisance suit seeking an order compelling large electric utility companies to reduce their contributions to global climate change. At issue will be a variety of doctrines – such as standing and political question – that nominally originate from constitutional limitations on the role of the judicial branch, but that judges have, over the years, expanded well beyond the text and structure ...

Bad Times for Good Government

by Douglas Kysar | September 27, 2010
This post looks at two recent books by CPR Member Scholars in the context of the BP disaster and other recent regulatory failures: The People’s Agents and the Battle to Protect the American Public, by Rena Steinzor and Sidney Shapiro Facing Catastrophe: Environmental Action for a Post-Katrina World, by Robert R. M. Verchick Does the BP oil spill signify the need for an entirely new conception of the administrative state, one reformulated to meet the global, complex, uncertain, and potentially ...

The State of the Cost-Benefit State: What We Can Expect from Sunstein, 'Nudge,' and OMB on Regulatory Impact Analysis

by Douglas Kysar | February 05, 2010
This week the White House Office of Management and Budget (OMB) released its annual report to Congress on the costs and benefits of federal regulatory programs. For the policy wonks among us, the most intriguing part was a section on recommendations for reform of the OMB regulatory review process. Here we find hints of what might result from President Obama’s long-awaited overhaul of the executive order on regulatory impact analysis. Cass Sunstein – an eminent legal scholar and now head ...

Lomborg Plays Economist-as-Philosopher-King on Climate Change

by Douglas Kysar | September 05, 2009
Prominent environmental commentator Bjorn Lomborg is at it again, this time convening a blue ribbon panel of five economists to assess the relative merits of different possible methods for addressing climate change.  As reported by Reuters Friday morning, Lomborg's panel concluded that "'climate engineering' projects, such as spraying seawater into the sky to dim sunlight, would be a more effective brake on global warming than increasing taxes on energy."  In a blog entry, The Wall Street Journal added that the ...

Also from Douglas Kysar

 Douglas A. Kysar is Deputy Dean and Joseph M. Field ’55 Professor of Law at Yale University Law School.

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