Earlier this Month, Judge James Boasberg, who had previously ruled that the easement allowing construction of the Dakota Access Pipeline must be vacated due to a failure to comply with NEPA, nonetheless declined to issue an injunction requiring that the pipeline cease operations. The Court’s rationale was clear and straightforward. The Court of Appeals ruled that Judge Boasberg could not enjoin use of the pipeline without finding that all elements of the four-factor test for an injunction had been met. … More
Category Archives: Cost-Benefit Analysis
Last week, the Fish and Wildlife Service issued a proposed rule that would revoke the rule promulgated by the Trump Administration in January 2021 and return to the prior status quo, in which the incidental take of birds subject to the Migratory Bird Treaty Act constituted a violation of the Act. I’m not taking a position on the proposal. I don’t think it’s as clear-cut as my friends in the environmental movement seem to believe. … More
I’ve frequently discussed in recent years the mounting evidence for the need to lower the National Ambient Air Quality Standard for PM2.5. There is also substantial evidence that PM exposure is an environmental justice issue. In this context, electrification of our transportation system is seen as having a substantial co-benefit in the reduction of vehicle-related PM emissions, particularly in EJ communities.
Two recent stories both confirmed the validity of these issues and made manifest the complexity of the problems we are trying to solve. … More
It’s only a slight rhetorical exaggeration to say that the limited bandwidth left to environmental issues other than climate change in recent years has been largely occupied by concerns about PFAS – Per-and polyfluoroalkyl substances, also known as “Forever chemicals.” A fascinating story in Bloomberg Environment & Energy (subscription required) this week suggests that we may need a little more bandwidth for PFAS.
The Bloomberg story explained that fluoropolymers are integral to the rollout of 5G networks and are also critical to a number of advanced technologies,… More
Among the important provisions of President Biden’s Executive Order on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis is the requirement to review and revise estimates of the social cost of carbon (and nitrous oxide and methane). The order establishes a working group, co-chaired by the Chair of the Council of Economic Advisers, the Director of OMB, and the Director of the Office of Science and Technology Policy. … More
Over the past four years, while the Trump Administration did everything possible to ignore climate change, optimists continued to find progress at the state level. And while President-elect Biden has put together an A-team on climate, Massachusetts, at least, seems determined to show that the states will continue to lead – even if they now have a partner at the federal level.
Two weeks ago,… More
Yesterday, EPA formalized its decision to leave the ozone NAAQS unchanged, at 70 ppb. I don’t think that this decision is in the same category of egregiousness as EPA’s recent decision not to reduce the PM2.5 NAAQS. After all, only one decision can be the single worst environmental policy of an entire administration.
I’m not that close to the science on the ozone NAAQS,… More
Last week, EPA finalized its rollback of Obama administration regulations governing methane emissions from the oil and gas industry. The move is not exactly a surprise. Regarding the purpose of the rollback, I stand by my take on the proposed regulations. This regulation was promulgated for two purposes. First, it provides generic red meat to those who think government regulation is inherently a bad thing. … More
BLM Rescission of the Methane Waste Prevention Rule Has Been Vacated; Two Thoughts About the Implications
Last week, Judge Yvonne Gonzalez Rogers vacated BLM’s rescission of the 2016 methane “Waste Prevention Rule.” Although Judge Rogers found many flaws in the rescission rule, I think that two are key.
Last week, EPA released its proposed rule regarding Increasing Consistency and Transparency in Considering Benefits and Costs in the Clean Air Act Rulemaking Process. As much as I hate to give aid and comfort to this Administration, I have to say that the rule does not herald the end of western civilization. The biggest controversy surrounding the rule is its impact on consideration of “co-benefits”. … More
Last week, EPA formally revised the cost-benefit analysis for its rule limiting the emissions of hazardous air pollutants from coal-fired power plants. The rule jettisons consideration of so-called “co-benefits,” in this case, the benefits from the reduction in emissions of PM2.5 that result from limits on mercury emissions. The very idea of excluding consideration of co-benefits is just plain incoherent.
I’ve spent my career defending cost-benefit analysis to many of my environmentalist friends. … More
EPA and the NHTSA have finally released Part 2 of the Safer Affordable Fuel-Efficient (SAFE) Vehicle Rule. Most readers will know that Part 1 of the SAFE rule revoked California’s waiver authorizing it to impose more stringent mileage standards. Part 2 substantially rolls back the federal fuel-efficiency standards promulgated by the Obama Administration.
Greenwire reported today that two medical sterilization facilities in Georgia that had been shut down or had production limited due to concerns about exposures to ethylene oxide would be allowed to increase operations in response to the need for sterilized medical equipment to address the COVID-19 pandemic. The result is not surprising and, one assumes, appropriate in the circumstances.
It does highlight, though,… More
Last week, Judge Richard McNamara ruled that the plaintiffs were likely to succeed in their challenge to the very stringent standards for PFAS in drinking water promulgated by the New Hampshire Department of Environmental Services. However, given the importance of the issues, the Court stayed its injunction until December 31, to give the parties time to appeal to the NH Supreme Court.
The Court ruled against the plaintiffs’ claims that the regulations constituted an unfunded mandate and that DES failed to give fair notice and an opportunity to comment on the regulations (DES’s final regulations were substantially more stringent than its proposed regulations). … More
Last Friday, the D.C. Circuit Court of Appeals ruled that EPA violated the Clean Air Act in failing to impose deadlines on upwind states violating the CAA’s Good Neighbor provisions. The Court concluded that, where downwind states face significant consequences in not meeting statutory deadlines to attain National Ambient Air Quality Standards, but don’t control their own fate because upwind states are contributing significantly to the downwind states’ nonattainment,… More
Earlier this week, the Department of Energy withdrew definitions of “general service lamps” and “general service incandescent lamps” promulgated under the Obama administration. The effect is to eliminate requirements that such lamps move to more energy-efficient bulbs. Examples include recessed fixtures, referred to, at least in my house, as “cans,” and chandeliers.
On this one, I’ll leave the legal issues to others. To me, the noteworthy aspect was that DOE is defending the rule,… More
Last week, EPA proposed to eliminate regulation of methane emissions from the oil and gas industry. The most noteworthy response to the proposal came from the large producers. ExxonMobil, Shell, and BP all oppose the rollback. In fact, Shell went on record not that long ago requesting the EPA increase the stringency of oil and gas methane regulation. Anyone else hear an echo of the large automakers’ response to the Administration’s efforts to relax fuel efficiency standards?… More
The D.C. Circuit today largely upheld EPA’s 2015 revisions to the National Ambient Air Quality Standard for ozone. I’m not much of a prognosticator, but I pretty much called this one years ago. The Court was never going to require EPA to consider costs in setting the NAAQS – not a surprise, given that the Supreme Court concluded in Whitman v.… More
The Fish and Wildlife Service and the National Oceanic and Atmospheric Administration have released final rules amending significant parts of the regulations implementing the Endangered Species Act.
How big an impact will the changes have? Well, there’s no doubt that the supporters of the regulations hope that they will be substantial and the opponents are worried that they will be substantial,… More
Last week, a federal judge once more rejected the Environmental Assessment for the expansion of the Spring Creek Mine in Montana. The case does not really break any new ground, but it does add to the growing number of cases in which courts have rejected federal action approving a variety of large facilities related to energy production in one way or another. The crux of this case was the failure of the EA to consider downstream,… More
I’ve only now had the opportunity to catch up with EPA’s proposed reconsideration of its approach to cost-benefit analysis for the Mercury and Air Toxics Standards. I don’t know whether I’ve gone down a rabbit hole or it’s just that the law is an ass. Either way, it’s not good news.
Being a poor country environmental lawyer, I don’t often delve into the academic world. I therefore just recently caught up to the article written last year by my friend Dan Esty. Red Lights to Green Lights: From 20th Century Environmental Regulation to 21st Century Sustainability, is a wonderful synthesis of a lot of work on how to build a better regulatory mousetrap.
The title does not exactly roll off the tongue,… More
Score One For Rational Regulation: The 2nd Circuit Rejects Environmental and Industry Challenges to EPA’s Cooling Water Intake Structure Rule
On Monday, the 2nd Circuit Court of Appeals rejected all challenges to EPA’s cooling water intake structure rule. Notwithstanding the Court’s rejection of the industry challenges, it’s a big win for industry. As I noted when the rule was promulgated, industry dodged a major bullet when EPA decided not to require closed-cycle cooling at existing facilities.
The decision is really all about Chevron deference and is another bit of evidence in support of my ongoing effort to demonstrate that conservatives might want to be careful what they wish for when they discuss overruling Chevron.… More
OMB Reports that the Benefits of Regulation Exceed the Costs. The President Knows that Can’t Be Right
Late last month, to no fanfare whatsoever, OMB released its annual report on the costs and benefits of federal regulations. There’s a reason that the Administration did not give the report any attention. The report states that, for the 10-year period ending September 30, 2016, the benefits of major Federal regulations ranged from $219 billion and $695 billion, while the costs ranged between $59 billion and $88 billion. … More
Last week, the Lancet Commission on pollution and public health (free registration required) released a study on the annual costs of pollution. There’s bound to be argument about the specifics, but it’s difficult to argue with the conclusion that those costs are really, really, big. The study estimates the annual global welfare loss due to pollution at $4 trillion – $6 trillion. The Lancet says that this is more than 6% of global economic output. … More
Yesterday, Magistrate Judge Elizabeth Laporte granted summary judgment to plaintiffs and vacated the Bureau of Land Management’s notice that it was postponing certain compliance dates contained in the Obama BLM rule governing methane emissions on federal lands. If you’re a DOJ lawyer, it’s pretty clear your case is a dog when the Court enters summary judgment against you before you’ve even answered the complaint.
The case is pretty simple and the outcome should not be a surprise. … More
In June, I posted about Foley’s brief in support of those challenging Executive Order 13771, the so-called “2 for 1” EO. By ignoring the benefits of existing and proposed regulations, the Order ignores the purposes behind the legislation pursuant to which regulations are promulgated. The Order is thus the definition of arbitrary and capricious.
On Monday, on behalf of our client, the Union of Concerned Scientists, Foley Hoag filed an amicus brief in support of the plaintiffs in the case challenging President Trump’s Executive Order 13771, the so-called “2 for 1” EO. One paragraph from the brief pretty much summarizes the argument:
It is important to note, as Executive Order 13771 acknowledges, that agencies are already required,… More
Make no mistake, the Executive Order signed by President Trump at EPA yesterday is a big deal. Time will tell whether the Administration’s U-turn on the Obama rules currently in litigation, such as the Clean Power Plan and the rule on fracking on federal lands will make any difference to judicial review of those rules. There are plenty of states and NGOs ready to step into EPA’s and BLM’s shoes to defend those rules.… More
As I noted when the 5th Circuit Court of Appeals stayed EPA’s disapproval of Texas’s regional haze plan, EPA had pretty much no chance of winning. Although the parties then stayed the litigation to talk settlement, EPA announced yesterday that it was seeking a voluntary remand of the final rule. You don’t have to be privy to any confidential information to draw the conclusion that a certain election on November 8 rather drastically reduced EPA’s leverage in those negotiations.… More
Earlier this week, the 7th Circuit affirmed the Department of Energy’s new energy efficiency requirements for commercial refrigeration equipment. This is a big deal in its own right, simply because the numbers are really large – according to DOE, the rule will save 2.89 quadrillion BTUs over the lifetime of equipment purchased under the rule. It’s a reminder that energy efficiency remains a key to reducing carbon emissions.… More
Last week, EPA issued its “Supplemental Finding”, confirming that it still believes that its Mercury and Air Toxics Standards are “appropriate and necessary.” I don’t have much to add to our post at the time of the proposed Supplemental Finding. In short, the Supplemental Finding isn’t going to change anyone’s mind, but it should be sufficient to withstand judicial review as long as the courts still believe in Chevron deference.… More
Yesterday, the D.C. Circuit Court of Appeals refused to vacate EPA’s Mercury and Air Toxics Standards. The decision was not a surprise. As I noted earlier this fall, there is a definite trend towards refusing to vacate complex EPA rules. Where the rule is sufficiently complicated and EPA can tell any kind of credible story that maintaining a slightly tarnished rule is better than no rule at all,… More
Late last week, EPA issued a Supplemental Finding, concluding that it is still “appropriate and necessary” to regulate hazardous air pollutants from coal- and oil-fired electric generating units. The Supplemental Finding was necessary after the Supreme Court ruled earlier this year that EPA’s original decision to regulate HAP emissions from EGUs was flawed because EPA did not consider costs in making the decision. Is the Supplemental Finding enough to ensure that the Mercury and Air Toxics rule is upheld this time around? … More
Having gotten the Clean Power Plan out the door, EPA has moved on to another target of President Obama’s Climate Action Plan: landfill methane emissions. Late last week, EPA proposed both new emission guidelines for existing landfills and a supplemental proposal to modify the new source performance standards for new or modified landfills. The landfill rule is a somewhat easier lift than the Clean Power Plan.… More
On Tuesday, the D.C. Circuit Court of Appeals affirmed EPA’s update of its hexavalent chromium MACT rule. Suffice it to say that this was a little easier than review of the power plant MACT rule.
The Court rejected both industry and environmental group challenges, in what was largely a straightforward application of Chevron. The opinion is nonetheless useful in laying out what EPA must have in the record to justify ratcheting down MACT standards.… More
On Tuesday, the 9th Circuit Court of Appeals affirmed the Commerce Department’s designation of critical habitat for the southern distinct population segment of green sturgeon, once again reminding us just how difficult it is to fight city hall – or the capital – where the ESA is concerned.
Section 4 of the EPA provides that
The Secretary shall designate critical habitat .… More
The short answer is, yes, though the majority is more wrong.
In fact, the issue in Michigan v. EPA seems so simple that the MATS rule could have been affirmed in a two-page opinion. Judge Scalia notes that the word “appropriate” – on which the entire 44 pages of the majority, concurring, and dissenting opinions focus – is “capacious”. I agree. … More
Last Friday, I posted about Governor Baker’s Executive Order 562, which requires cost-benefit analysis, cost effectiveness analysis – and more – before state agencies can promulgate regulations. It took less than a week before it became clear that EO 562 has real teeth. Yesterday, MassDEP sent out a one-paragraph notice delaying hearings on its proposed Clean Energy Standard, citing EO 562 as the reason:
MassDEP is postponing the hearings and comment period on the proposed Clean Energy Standard rule until it has completed the reviews required under the recent Executive Order 562.… More
I have never agreed with those in the environmental community who are opposed to cost-benefit and cost-effectiveness analysis. Cost-effectiveness analysis just seems a no-brainer to me. As to cost-benefit analysis, we do it implicitly every time we write a regulation, and I don’t understand the unwillingness to do so explicitly.
On Monday, EPA finally announced promulgation of its long-awaited rule governing cooling water intake structures at existing facilities. The rule is certainly important, but it’s not earthshattering and it may be more significant for what it does not do than for what it does.
What does it do?
• Facilities that withdraw at least 2MGD must reduce impingement based on a finding that use of modified traveling screens with fish returns constitutes the best technology available (BTA).… More
The Wind Bloweth Where It Listeth — And the Supreme Court Says EPA Therefore Has Discretion in Regulating Wind-Borne Pollution
The Supreme Court today reversed the D.C. Circuit and affirmed EPA’s Transport Rule (known more formally as the Cross-State Air Pollution Rule). Whatever the hopes and dreams of the upwind states and the industry opponents, the decision does not surprise me. EPA pretty much did what it was told when the Bush era CAIR rule was struck down. Moreover, EPA crafted a rule that seems to me fully within its discretion under the Clean Air Act and which,… More
D.C. Circuit Affirms EPA’s Utility Air Toxics Rule: An “Appropriate” Rule Need Not Be Justified By Cost-Benefit Analysis
Yesterday, the D.C. Circuit Court of Appeals affirmed EPA’s rule setting limits for emissions of mercury and other air toxics from fossil-fuel-fired electric steam generating units. The focus of the decision – and the issue on which Judge Kavanaugh dissented – was whether EPA was required to consider the costs that would be imposed by the rule. EPA said no and the majority agreed.
Section 112(n) of the Clean Air Act required EPA to perform a study of the health hazards related to hazardous emissions from EGUs prior to regulating them. … More
Sometimes the most valuable research turns out to be a confirmation of the obvious. Fitting that bill is the study released yesterday in the Proceedings of the National Academy of Science documenting the substantially decreased life expectancy among people in China living in areas where coal has for many decades been used to heat homes. The study is based on a long-standing policy in China of distributing coal free to residents who live north of the Huai River but not to people living south of the river. … More
CZM Proposes Regulations to Implement Ocean Management Plan and Update Federal Consistency Review Program
The Massachusetts Office of Coastal Zone Management (CZM) recently released for public review and comment draft regulations designed to update federal consistency review requirements and implement the state’s Ocean Management Plan.
Governor Patrick signed the Oceans Act on May 28, 2008, requiring the Secretary of EOEEA to develop a comprehensive ocean management plan. The Massachusetts Ocean Management Plan was released on December 31, 2009. … More