Boxer-Kerry: Measures to Address Error and Illegality
This post is the fourth in a series from CPR Member Scholars examining different aspects of the Boxer-Kerry bill on climate change, which was released September 30
The Boxer-Kerry bill released on September 30, 2009 is yet another massive piece of proposed legislation. And it is likely to get even larger as details are added regarding distribution of pollution allowances, and as other gaps and shortcomings are addressed. Its basic architecture and enforcement provisions, however, give us a good feel for the bill’s basic functioning. It retains some of the best elements of the Waxman-Markey bill passed by the House and improves on others, but it leaves unresolved some fundamental choices that could lead to implementation uncertainties down the road. In particular, this analysis will focus first on error risks, especially on the extent to which the bill allows for regulatory agencies to fix mechanisms in the bill that fail to perform, or adjust for assumptions that turn out to be wrong. This analysis will then look at federalism and enforcement provisions that are among the mechanisms that can keep an enacted climate bill on track and also help address shortcomings in the law’s accomplishments.
A pervasive challenge faced in a bill of this magnitude is the risk that it will quickly become derailed by the sheer weight of the demands it places on the federal regulatory agencies. Especially problematic in any complex and large legislative scheme are intertwined regulatory obligations that create a risk
Boxer-Kerry: Carbon Capture and Sequestration Provisions Are About Right
This post is the third in a series from CPR Member Scholars examining different aspects of the Boxer-Kerry bill on climate change, which was released September 30. The Boxer-Kerry bill, like the Waxman-Markey bill that passed the House, provides for funding, study, and emissions allowances for Carbon Capture and Sequestration (CCS). In terms of developing a technology in the short-term to significantly reduce CO2 emissions from power plants, this is sound policy. On the other hand, it will be important to ensure
Mountaintop Removal Review Moves to Next Stage
(Cross-posted by permission from LegalPlanet) EPA finished September with a flourish. In addition to proposing New Source Review rules for greenhouse gas emissions and pushing for TSCA reform, the agency took the next step toward a crack-down on mountaintop removal. On September 11, EPA announced preliminary plans to review all 79 pending permit applications. This week, after considering public comment, it finalized that list, concluding that indeed all 79 require further review, based on concerns that the projects could more
Boxer-Kerry: Integrating Regulation and Cap-and-Trade
This post is the second in a series from CPR Member Scholars examining different aspects of the Boxer-Kerry bill on climate change, which was released September 30. Wednesday was a big day for advocates of traditional regulation. While the Waxman-Markey bill proposed exempting greenhouse gases (GHGs) from key Clean Air Act (CAA) provisions, the Boxer-Kerry bill proposes a greenhouse gas (GHG) cap-and-trade program to complement rather than replace the CAA’s standard authority to establish regulations for stationary sources of air pollutants. Almost
Boxer-Kerry an Improvement over ACES on Offsets
This post is first in a series from CPR Member Scholars examining different aspects of the Boxer-Kerry bill on climate change, which was released today. With respect to offsets, the Boxer-Kerry bill is a distinct improvement over the ACES. It allows a relatively strong approach to offset integrity, avoiding negative social or environmental effects, and facilitating possible integration with other systems. It also addresses some issues that will be important to the functioning of a trading market, but still leaves
Full Boxer-Kerry climate bill is up
by Ben Somberg | September 30, 2009
The full 821-page bill is up here. That's not to be confused with the 801-page pre-draft everyone was checking out yesterday, or the 684-page one earlier yesterday. They’ve also got a section-by-section outline of the bill. We'll have much more soon.
Reasonably Assured? The Chesapeake Bay and Reasonable Assurances
by Yee Huang | September 30, 2009
This post is part of CPR’s ongoing analysis of the draft reports on protecting and restoring the Chesapeake Bay. See Shana Jones' earlier "EPA's Chesapeake Bay Reports: A First Look" One of the continuing obstacles to cleaning up the nation’s waterways, including the Chesapeake Bay, is the pollution caused by non-point sources (NPS). In the recently released draft reports on protecting and restoring the Chesapeake Bay, the EPA attempts to address NPS in part by reinvigorating the “reasonable assurance” standard,
PennFuture: Manure Increasing in Key Region Draining into Chesapeake Bay, Despite Pledges
Today PennFuture released a report finding that the amount of liquid manure applied to farms in Pennsylvania’s Octoraro watershed has increased by 40 percent over the past five years to 108 million gallons annually. The amount of nitrogen produced by livestock in the watershed is equal to the amount generated by approximately 370,000 people each year. Unlike Las Vegas, what happens in the Octoraro watershed doesn’t stay in the watershed. The watershed, which includes parts of Lancaster and Chester counties,
CPR Releases Manual on Water Resources and the Public Trust Doctrine
by Ben Somberg | September 29, 2009
Much of the battle to preserve and protect water resources happens at the state and local levels – in any number of policy choices advocated and made by individuals, organizations, companies, and governments. In recent years, water activists have begun to deploy a new tool geared to shape these decisions. Long-established in legal jurisprudence, the public trust doctrine holds that certain natural resources belong to all and cannot be privately owned or controlled because of their intrinsic value to each
WashPost Prints Lomborg
by Ben Somberg | September 28, 2009
This just in: trying to stop climate change will cost the world about $50 trillion a year, but the impacts of climate change will only cost about $1 trillion a year, so the choice is clear! That's the thesis of Bjorn Lomborg's op-ed in Monday's Washington Post. Presumably the flooding of much of Bangladesh doesn't count for much, since those lives are totally worth less than ours, etc. Update: For more on this, see Joe Romm and Miles Grant.
National Security Spending Doesn't Have to Clear Cost-Benefit Test, Obama Administration Confirms. But Health Regulations?
Issues of national security have always enjoyed a free pass when it comes to the use of cost-benefit analysis (CBA) as the primary form of making decisions. For example, no military official or politician interested in keeping his job would ever dare publicly question whether the additional money spent on extra armor for tanks to keep soldiers safer could be put to better use somewhere else. There are plenty of reasons why we are willing to accord national security decisions
Workplace Safety News This Week
by Ben Somberg | September 25, 2009
The Chemical Safety Board released its report Thursday on the 2008 explosion at the Imperial Sugar plant in Georgia, finding that the incident was "entirely preventable" (Reuters article, full report). Ken Ward Jr. gave helpful context for the announcement and followed up afterward with the criticism from unions for the Chemical Safety Board's "decision to not repeat its previous recommendations that the federal Occupational Safety and Health Administration write tough standards regulating combustible dust in America’s workplaces." Celeste Monforton applauded
Coveting Their Neighbor's Water: the Importance of Hood v. City of Memphis
The interstate water wars have gone underground. For more than a century, the U.S. Supreme Court has been the arbiter of last resort to settle fights between states over the right to use surface streams that cross state lines. But now, the high Court may be asked to settle a long-standing feud between Mississippi and Tennessee over a vast underground formation—the Memphis Sand aquifer, which underlies about 10,000 square miles of Arkansas, Tennessee, Mississippi, and Kentucky. The stakes are high,
Second Circuit's Decision in Connecticut v. AEP Makes Clear No One is Above the Law
The Second Circuit's ruling Monday in State of Connecticut, et al. v. American Electric Power Company Inc., et al. revived a public nuisance lawsuit against the nation’s five largest electric power companies. The case opens the door to a potential judicial remedy for the alleged harm and increases the pressure on Congress and the Executive Branch to devise a more comprehensive solution to our greenhouse gas problem. In an ideal world, would we give the task of designing facility-specific climate
Wishful Thinking Doesn't Justify Grizzly Delisting
Cross-posted by permission from Legal Planet. Federal Judge Donald Molloy in Montana has ordered the Fish and Wildlife Service to restore grizzly bears in the Yellowstone area to the list of endangered and threatened species. Judge Molloy refused to allow FWS to delist the grizzly on the basis of unsupported wishful thinking about the bear’s future. Grizzly bears once roamed across most of the North American west, but the population in Yellowstone is one of the few remaining remnants in
A Promising Step Toward a National Ocean Policy
Cross-posted by permission from Legal Planet. In June, President Obama created an Interagency Ocean Policy Task Force, and directed it to make recommendations for a national ocean policy. The Task Force got right to work. Now, after convening two dozen expert roundtables, inviting public comment, and holding the first of six public sessions, the Task Force has issued an Interim Report recommending key elements of a national policy. The Interim Report is very encouraging. If the Task Force follows this
Obama's Frank Talk on Climate at the U.N.: More Please
by Amy Sinden | September 22, 2009
Imagine if the end of the world were coming and everyone was just too polite to talk about it. That’s been the eerie feeling I've gotten over the past eight months listening to the President talk about energy policy. Not wanting to be a downer, he couches his energy talk in positive spin: We’re going to invest in the new clean green economy, create jobs, sell American ingenuity and know-how around the world, and reduce our dependence on foreign oil.
9th Circuit's Strong Words for EPA's Office of Civil Rights
by Ben Somberg | September 21, 2009
As first reported by Law 360 on Thursday: In a decision reversing a ruling in favor of the U.S. Environmental Protection Agency, a federal appeals court has chastised the agency's Office of Civil Rights for what the court said was its apparent failure to consider alleged civil rights violations in a timely manner. “What the district court initially classified as an 'isolated instance of untimeliness' has since bloomed into a consistent pattern of delay by the EPA,” wrote Judge A.