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March 2, 2021 by Daniel Farber

Recalculating the Cost of Climate Change

This post was originally published on Legal Planet. Reprinted with permission.

"The social cost of carbon" isn't exactly a household phrase. It's an estimate of the harm caused by emitting a ton of carbon dioxide over the many decades it remains in the atmosphere. That's an important factor in calculating the costs and benefits of climate regulations. For an arcane concept, it has certainly caused a lot of controversy. The Obama administration came up with a set of estimates, which Trump then slashed by 90 percent.

In an early executive order, Biden created a task force to revisit the issue. Last week, the task force issued its first report. It's an impressive effort given that Biden is barely a month into his presidency. The document provides a clear overview of the ways in which climate science and climate economics have advanced since the Obama estimates and makes the case for rejecting the Trump administration's revisions. At least one federal court has already rejected those revisions, as well.

In no uncertain terms, the report rejects two moves made by the Trump administration as economically unsound. First, the Trump administration refused to consider any of the impacts of climate change outside the …

Feb. 26, 2021 by Daniel Farber
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This post was originally published on Legal Planet. Reprinted with permission.

In the wake of the Texas blackouts, we're seeing a number of familiar moves to deflect blame by the usual suspects — politicians, regulators, and CEOs. These evasive tactics all begin with a core truth: Eliminating all risk is impossible and would be too expensive even if it weren't. But then they spin that truth in various ways. The result is to obscure responsibility for the disaster and the steps that should be taken going forward.

Here are some of the most common dodges — not counting such crass moves as blaming everything on the Green New Deal or the media.

Dodge #1: No one could have foreseen this event! This often sounds reasonable. How could anyone have foreseen that New Orleans' levees would simply collapse, or that a historic tsunami would hit the nuclear reactors at Fukushima …

Feb. 1, 2021 by Daniel Farber
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CPR Member Scholar Daniel Farber originally wrote this commentary for The Appeal.

Introduction

Big Tobacco’s Master Settlement Agreement in 1998 was the largest civil settlement in the nation’s history and a transformative moment in the industry’s control. The accord reached by 46 states, five United States territories, and the District of Columbia required tobacco manufacturers to pay the states billions of dollars annually in compensation for the public health crisis their products had created.

Today, an even bigger crisis looms, with increasing demands for accountability. Over a dozen federal cases have now been filed against oil companies, seeking damages for their role in causing climate change. With one exception, the cases have been brought by states or local governments that claim they and their citizens are suffering harm from climate change. (The exception is a case brought by Pacific Coast fishing companies for harm …

Jan. 25, 2021 by Daniel Farber
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This post originally ran in The Conversation and on Legal Planet and is reprinted here under Creative Commons license CC BY-ND 4.0.

The Trump administration dedicated itself to deregulation with unprecedented fervor. It rolled back scores of regulations across government agencies, including more than 80 environmental rules.

The Biden administration can reverse some of those actions quickly – for instance, as president, Joe Biden can undo Donald Trump’s executive orders with a stroke of the pen. On his first day in office, Biden used that power to start bringing the U.S. back into the Paris climate agreement and the World Health Organization, and to rescind a permit for the Keystone XL oil pipeline and orders restricting travel from several predominantly Muslim and African countries. He also ordered a temporary moratorium on oil and natural gas leases in the Arctic National Wildlife Refuge.

Undoing most regulatory …

Jan. 19, 2021 by Daniel Farber
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This post was originally published on Legal Planet. Reprinted with permission.

Conservatives love to complain about faceless bureaucrats, but blaming bureaucrats for regulations is hopelessly out of date. When Elena Kagan was a professor, she wrote an article called “Presidential Administration.” The article applauded her former boss Bill Clinton for seizing greater control of the regulatory process, away from agencies. That trend has accelerated to the point where the White House controls even the fine details of regulation.

Two things can get sidelined in presidential administration. One is agency expertise. No one in the White House has as much knowledge as agency experts about air pollution, or climate change, or endangered species.

The other thing that gets sidelined is active implementation of the law actually passed by Congress. The White House staff who review regulations care only about costs and benefits. The president and the higher-level staff …

Jan. 13, 2021 by Daniel Farber
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This post was originally published on Legal Planet. Reprinted with permission.

Donald Trump's hostility domestic environmental regulation is notorious. He also stalled or backpedaled on the international front. Here are seven steps that President Biden could take to remedy the situation.

  1. Rejoin the Paris Agreement. The U.S. needs to immediately rejoin the Paris Agreement. It also needs to update its climate target because we can do a lot more than we thought possible even four years ago to reduce emissions. Technology has improved, renewable prices have fallen, and the car industry is prepared to embrace electric vehicles.

  2. Rejoin the WHO. Leaving the World Health Organization (WHO) in the middle of a pandemic was crazy for many reasons — among them, its effect on the environment. As I wrote in a post at the time, WHO does important work in many countries on controlling dangerous levels of air …

Dec. 15, 2020 by Daniel Farber
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This post was originally published on Legal Planet. Reprinted with permission.

Donald Trump prided himself on his contempt for established norms of presidential action. Whole books have been written about how to restore those norms. Something similar also happened deeper down in the government, out in the agencies like the U.S. Environmental Protection Agency (EPA) that do the actual work of governance. Trump appointees have corrupted agencies and trashed the norms that support agency integrity. It will take hard work to undo the harm. White House leadership is important, but success will require dedicated effort by the agency heads appointed by Biden.

Scientific integrity. The role of science is the most obvious example of norm busting under Trump. Whether it is EPA, the National Oceanic and Atmospheric Administration (NOAA), the Food and Drug Administration (FDA), or the Centers for Disease Control and Prevention (CDC), the Trump …

Dec. 11, 2020 by Daniel Farber
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This post was originally published on Legal Planet. Reprinted with permission.

A recent Ninth Circuit ruling overturned approval of offshore drilling in the Arctic. The ruling may directly impact the Trump administration's plans for oil leasing in the Arctic National Wildlife Refuge (ANWR). By requiring agencies to consider emissions when fossil fuels are ultimately burned, the Court of Appeals' decision may also change the way agencies consider other fossil fuel projects, such as gas pipelines.

In Center for Biological Diversity v. Bernhardt, environmental groups challenged the Interior Department's approval of an offshore drilling and production facility on the north coast of Alaska. In its environmental impact statement, the agency refused to consider the effects of the project on carbon emissions outside the United States.

On its face, as the court was quick to point out, the agency's position makes no sense. It's like assuming that if you …

Nov. 20, 2020 by Daniel Farber
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This post was originally published on Legal Planet. Reprinted with permission.

Without a Democratic majority in the Senate, President Biden will have to rely on administrative action to do the heavy lifting. It's clear that EPA has a central role to play in climate policy, but EPA does not stand alone. Other agencies also have important roles to play. Fortunately, the Biden transition team seems to have come to this realization.

A multi-agency approach is especially important because bold actions by EPA will face a skeptical audience in the 6-3 conservative Supreme Court. Thus, a diverse portfolio with many different actions from many agencies is prudent. Moreover, EPA is much more in the political spotlight, so any bold action on its part is sure to be met with a political firestorm. Other agencies may fly more under the radar.

The final reason for multi-agency action is that …

Sept. 22, 2020 by Daniel Farber
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With Sen. Mitt Romney’s announcement this morning that he would support consideration of a nominee before the election, it now seems virtually certain that President Trump will be able to appoint a sixth conservative justice. How will that affect future climate policy? Here is a preliminary threat assessment.

The answer varies, depending on what policies we’re talking about. Overall, the implications of a 6-3 Court are bad. But they’re probably not as dire for environmental law as for other issues like racial equality or reproductive rights.

As a quick preliminary take on this, I’ll sort heightened legal risks of climate actions into high, medium, low, and wildcard. The wildcard risks actually worry me the most.

High Risk

Innovative regulations like Obama’s Clean Power Plan. Regulations by EPA that use existing statutory …

CPR HOMEPAGE
More on CPR's Work & Scholars.
March 2, 2021

Recalculating the Cost of Climate Change

Feb. 26, 2021

Three Ways of Dodging Responsibility

Feb. 1, 2021

The Climate Change Lawsuits Against Big Oil, Explained

Jan. 25, 2021

The Controversial Congressional Review Act

Jan. 19, 2021

Rethinking Presidential Administration

Jan. 13, 2021

Next Steps to Save the Global Environment

Dec. 15, 2020

Restoring Agency Norms