April 2, 2020 by Daniel Farber

Federalism and the Pandemic

The states have been out in front in dealing with the coronavirus. Apart from President Trump's tardy response to the crisis, there are reasons for this, involving limits on Trump's authority, practicalities, and constitutional rulings.

Statutory limits

As I discussed in a previous post, the president's power to deal with an epidemic is mostly derived from statutes. The available statutory powers include deploying federal resources and funding to support the states; controlling the movement of infected individuals across state lines and the U.S. border; and dealing with infections within the government's workforce. [Addendum: The way this was originally stated, it was a bit too narrow. The feds can also quarantine those who are likely to infect people who will cross state lines.]

States have broader powers. Governors, and often mayors, have the power to impose quarantines, close down businesses, and take over needed private resources. State governments also have ultimate control over public hospitals, and they regulate medical practice and activities of private hospitals. In short, while they don't have the same resources as the federal government, their powers are significantly stronger.

Practical limits

There are also practical reasons for a …

March 30, 2020 by Daniel Farber

It's a truism among disaster experts that people who were disadvantaged before a disaster are also the most vulnerable during the disaster. There are aspects of the coronavirus pandemic that fit this mold. Here are some of the disparities we can expect to see.

Rural v. Urban

Much of our economic growth and job opportunity is in cities, which is why young people continually leave the countryside. Life expectancies also tend to be lower in rural areas. Although it's hard to be sure, people in those areas may also be disadvantaged in terms of the coronavirus. The virus is likely to spread more slowly in rural areas because the web of interpersonal interactions is less dense and because rural areas are further from the airports that initially spread the disease. That's a definite advantage. But when the epidemic does …

March 26, 2020 by Daniel Farber

Originally published on Legal Planet. Reprinted with permission.

The Trump administration's major deregulatory efforts share a common theme. They assiduously avoid having to rely on scientific or economic evidence. Confronting that evidence is time-consuming and difficult, particularly when it often comes out the other way. Instead, the administration has come up with clever strategies to shut out the evidence.

The effort to repeal the Clean Power Plan illustrates some of these strategies. The Obama administration's plan would have cut carbon emissions from power plants along with destructive particulate emissions from those plants. The Trump administration didn't have much of a policy argument against the plan. So instead, it argued that the Clean Air Act just didn't give EPA the power to take sensible measures against climate change. As the old trial lawyer's saying puts it, "If the evidence is against you, argue the law."

The Clean …

March 18, 2020 by Daniel Farber

Originally published on Legal Planet. Reprinted with permission.

Now that President Trump has belatedly declared a national emergency, what powers does he have to respond to the coronavirus pandemic? There has been a lot of talk about this on the Internet, some of it off-base.

It's important to get the law straight. For instance, there's been talk about whether Trump should impose a national curfew, but I haven't been able to find any legal authority for doing that so far. The legal discussion of this issue is still at an early stage, but here are some of the major sources of power and how they might play out.

The Stafford Act (major disasters and national emergencies). Trump has specifically invoked the emergency provisions of the Stafford Act. The Stafford Act, which is mostly administered by FEMA, covers federal responses for two categories of events: major disasters and …

Feb. 18, 2020 by Daniel Farber

Originally published on Legal Planet. Reprinted with permission.

The Little Ice Age wasn't actually an ice age, but it was a period of markedly colder temperatures that began in the 1200s and lasted into the mid-1800s, with the 1600s a particular low point. It was a time when London winter fairs were regularly held on the middle of a frozen Thames river, glaciers grew, and sea ice expanded. That episode of climate disruption may give us some insights into how current global warming may impact society.

Weather changes in the Little Ice Age were less unidirectional and less globally uniform than current climate change. Different places hit their lowest temperatures at different times, and there were often large gyrations in temperatures from year to year. One cause was that sun's radiation decreased for unknown reasons – there were decades with no sunspots at all. There were also …

Jan. 13, 2020 by Daniel Farber

Originally published on Legal Planet. Reprinted with permission.

Last week's NEPA proposal bars agencies from considering many of the harms their actions will produce, such as climate change. These restrictions profoundly misunderstand the nature of environmental problems and are based on the flimsiest of legal foundations.

Specifically, the proposal tells agencies they do not need to consider environmental "effects if they are remote in time, geographically remote, or the product of a lengthy causal chain." The proposal also excludes "cumulative effects." [85 FR 1708] Not coincidentally, all of these restrictions target climate change, which involves very long-term, global, complex, and cumulative effects.

These restrictions fly in the face of everything we know about harm to the environment. We know that harm is often long-term rather than immediately obvious – think of chemicals that cause cancer decades after exposure. We also know that environmental effects aren't limited …

Jan. 10, 2020 by Daniel Farber

Originally published on Legal Planet. Reprinted with permission.

The White House just released its proposed revisions to the rules about environmental impact statements. The White House Council on Environmental Quality (CEQ) simply does not have the kind of power that it is trying to arrogate to itself. Its proposal is marked by hubris about the government's ability to control how the courts apply the law.

That hubris is evident in the proposal's effort to tell courts when lawsuits can be brought and what kind of remedies they can provide. For instance, it states that issuance or refusal to issue an impact statement does not trigger the right to go to court, that no claim can ever be raised in court unless it was first raised by the agency, and that lawsuits must be always be brought quickly. Some of these might be right, some might not be …

Jan. 6, 2020 by Daniel Farber

Originally published on Legal Planet. Reprinted with permission.

Australia is remarkably exposed to climate change and remarkably unwilling to do much about it. Conditions keep getting worse. Yet climate policy in Australia has been treading water or backpedaling for years, as I discussed in an earlier post.

Let's start with the temperature. The Guardian reports that in the year up to July 2019, Alice Springs (in the interior) had 55 days above 104°F. On New Year's Eve of 2018, it set a new record of 113°F. In December 2019, The Washington Post reported, temperatures soared to 104° (40° Celsius) in most of the nation's major cities, with inland areas of Victoria, New South Wales, and South Australia possibly eclipsing 122 degrees (50 Celsius). December 17, 2019, became the hottest day in Australian history, with an average high temperature across country of 105.6°. Two days …

Dec. 23, 2019 by Daniel Farber

Reposted by permission from LegalPlanet.

“It was the best of times; it was the worst of times.” That pretty much sums up the ten years from January 2010 to January 2020.

As the decade began, Barrack Obama was in the White House and the Democrats controlled Congress but were one vote short of a filibuster-proof majority in the House. Under Nancy Pelosi’s leadership, the Waxman-Markey bill had passed the House, but it never made it to a vote in the Senate. When the Democratic majority in the House was swept away in the 2010 elections, any possibility of federal climate legislation died for the rest of the decade.

The failure of climate legislation highlighted the importance of administrative action. In August 2012, following up on an early agreement with carmakers, the government issued a rule imposing an aggressive plan to reduce greenhouse gas emissions from vehicles …

Dec. 9, 2019 by Daniel Farber

Originally published on Legal Planet. Reprinted with permission.

Despite the efforts of the Trump administration, renewable energy has continued to thrive. Key states are imposing rigorous deadlines for reducing power generation from fossil fuels. Economic trends are also supporting renewables. In the first half of 2019, Texas produced more power from renewables than coal.

Texas may be content to rely on market forces, but other states are taking a more active hand in shaping their energy futures. Here are the new renewable energy mandates and targets of 2019:

  • In January 2019, the District of Columbia increased its RPS target to 100 percent renewable electricity sales by 2040.
  • New Mexico mandated 100 percent zero-carbon electricity by 2045, up from the previous target of 20 percent renewable generation by 2020.
  • Maine adopted a 100 percent target for 2050.
  • Maryland increased its target to 50 percent of electricity sales from …

More on CPR's Work & Scholars.
April 2, 2020

Federalism and the Pandemic

March 30, 2020

Inequality and the Coronavirus

March 26, 2020

The Flight from Evidence-Based Regulation

March 18, 2020

Presidential Power in a Pandemic

Feb. 18, 2020

Lessons of the Little Ice Age

Jan. 13, 2020

Misunderstanding the Law of Causation

Jan. 10, 2020

Pride Goeth Before a Fall