This post was originally published on Legal Planet. Reprinted with permission.
The decision at the Glasgow climate conference to phase down fossil fuels is an important step forward — and not just because of climate change. We think of fossil fuels as a source of climate change, but that's only a one part of the problem. From their extraction to their combustion, everything about them is destructive to the environment and human health.
Our system of environmental regulation divides up regulation of a single substance based on each of its environmental impacts. Thus, the regulatory system sees the "trees," not the "forest." That muddies the waters when we are talking about regulatory priorities, strategies, and long-term goals. It can also lead to framing issues in ways that may weaken environmentalist arguments, since the various harms of a substance or activity get fragmented into different silos.
Fossil fuels are a case in point. Consider coal. There are different regulations and often different regulators for impacts from coal mining on public lands, private lands, carbon dioxide emissions from combustion, methane emissions from mines, particular emissions, sulfur dioxide emissions, etc. When a law is focused on one impact of coal, attempts to take into account other harms can get mired in controversies about considering "co-benefits" and direct versus indirect or cumulative impacts.
The fact is that fossil fuels, especially coal and oil, have great disadvantages, which society has tolerated largely because there were no viable alternatives. The extraction phase can involve destruction of lands, risks to endangered species, water pollution from oil spills or leaching from mines, and serious dangers to workers. We have a series of laws governing these harms: OSHA for the risks to workers; the Clean Water Act and the Oil Spill Act for water pollution; the Surface Mining Control and Reclamation Act for strip mining; and special legislation dealing with public lands, coastal areas, and offshore drilling. The existence of these laws is a testament to the environmental harms of the activity.
Combustion of fuels is an even bigger problem. More than half of U.S. emissions, amounting to over three billion tons of carbon dioxide, come from transportation and electricity generation with fossil fuels. At the current government estimate of the social cost of carbon, that comes to $150 billion in long-term damage each year. A good chunk of the remaining emissions, which come from industry, commercial, and residential sources, are also from burning coal, oil, or natural gas. These numbers don't even count gas leakage from wells and pipelines, given that methane is such a potent greenhouse gas.
The health damage from using fossil fuels is also immense. A new study involving Harvard researchers concludes that fossil fuels cause eight million deaths a year on a global basis, including 350,000 within the United States. That's about ten times as many deaths as car accidents cause.
In short fossil fuels — and coal and oil in particular — impose tremendous costs on society. So long as we had no good alternatives, these costs may have been outweighed by our need for the energy. But this excuse is wearing thin as clean technologies have advanced. It would be foolish to continue using these fuels when we have the chance to switch to superior substitutes.
According to a recent report, three-quarters of all proposed coal power projects have been canceled since 2015. That's a good start to cleaning up our energy system.
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Daniel Farber | November 15, 2021
Our system of environmental regulation divides up regulation of a single substance based on each of its environmental impacts. Thus, the regulatory system sees the "trees," not the "forest." That muddies the waters when we are talking about regulatory priorities, strategies, and long-term goals. It can also lead to framing issues in ways that may weaken environmentalist arguments, since the various harms of a substance or activity get fragmented into different silos. Fossil fuels are a case in point.
Richard Pierce, Jr. | November 11, 2021
Effective climate change mitigation depends critically on the ability to substitute electricity for gasoline as the primary transportation fuel and to substitute carbon-free fuels for fossil fuels as the country’s primary source of electricity. But the nation’s electricity transmission grid is woefully inadequate to accomplish these important tasks, and the U.S. regulatory system renders it impossible for regulators and clean energy advocates to implement the necessary expansion of grid capacity. Most sources of carbon-free electricity are located a long distance away from the places where most people live and work. Studies indicate that the United States can provide carbon-free electricity to major population centers only by adding transmission lines to the grid.
Daniel Farber | November 8, 2021
Late Friday, the House passed President Biden's infrastructure bill, the Build Back Better law. As The Washington Post aptly observed, the bill is the biggest climate legislation to ever move through Congress. It also attracted key support from some Republicans, which was essential to passing it in both houses of Congress. Biden is pushing for an even bigger companion bill, but the infrastructure bill is a huge victory in its own right. One major area of spending is transportation. Some of that goes for roads and bridges. But as The Washington Post reports, there's a lot of money for rail and mass transit.
Daniel Farber | November 4, 2021
Unless you're deeply immersed in administrative law, you may not have heard of the major questions doctrine. It's a legal theory that conservative judges have used with increasing rigor to block important regulatory initiatives. The doctrine places special obstacles on agency regulation of issues of "major economic and political significance."
Minor Sinclair | October 28, 2021
Our society has finally reached a turning point on climate. I’m not referring to the “point of irreversibility” about which the United Nations warns us: In nine short years, the cascading impacts of climate change will trigger more and greater impacts -- to the point of no return. Rather, we have reached the turning point of political will for climate action. There is no going back to climate passivity or denialism. Choosing to electrify and greenify is a progressive agenda, a mainstream agenda, and an industry agenda -- though all of these agendas differ.
Daniel Farber | October 25, 2021
Cost-benefit analysis is required for all major regulations. It's also highly controversial, as well as being a mysterious procedure unless you're an economist. These FAQs will tell you what you need to know about how cost-benefit analysis (CBA) fits into the regulatory process, how it works, and why it's controversial.
Amy Sinden | October 19, 2021
In the actual work of crafting the regulatory safeguards that protect our environment and health, cost-benefit analysis has been largely ineffectual and irrelevant. Indeed, its ineffectiveness has been so profound as to prompt even its most ardent practitioners and proponents to question whether it has any impact on agency decisions at all. Meanwhile, it plays at best a minor role in the legal standards that actually govern agency decision-making. Despite all this, a certain cost-benefit orthodoxy has become remarkably entrenched in environmental policy circles. Especially in an era when so many progressive ideas are in ascendance, why does the idea of regulatory review based on cost-benefit analysis have such staying power?
James Goodwin | October 14, 2021
Over the last 40 years, the U.S. regulatory system has played an increasingly influential role in redefining our political and economic relationships in fundamentally neoliberal terms. A key but often overlooked institutional force behind this development is the peculiar form of cost-benefit analysis that now predominates in regulatory practice. Building a new regulatory system befitting our vision of a post-neoliberal America requires a formal rejection of prevailing cost-benefit analysis in favor of a radically different approach -- one that invites public participation, permits open and fair contestation of competing values at the heart of policy debates, and recognizes and honors our social interdependencies.
Jorge Roman-Romero, Melissa Lutrell | October 11, 2021
Cost-benefit analysis (CBA) is inherently classist, racist, and ableist. Since these are foundational problems with CBA, and are not simply issues with its implementation, they can never be fixed by mere methodological improvements. Instead, the ongoing modernization of centralized regulatory analyses must focus on "moving beyond" CBA, and not on fixing it or improving it. Thus, in implementing President Biden's memorandum on Modernizing Regulatory Review (the Biden Memorandum), the Office of Management and Budget (OMB) should make explicit that regulatory review no longer requires CBA, even—as will be true in the typical case—when regulatory review does demand economic analysis as part of a holistic, multi-factor regulatory impact analysis.