Category: Environmental Law

A Modest Proposal for Climate Change Adaptation

Dan Farber has recently complained that many “Senate candidates are signatories of the Koch Industries’ Americans For Prosperity No Climate Tax pledge.” I must assume that Prof. Farber has not heard about technological fixes for the climate change problem. As Jane Mayer reports, the “David H. Koch Hall of Human Origins, at the Smithsonian’s National Museum of Natural History, is a multimedia exploration of the theory that mankind evolved in response to climate change.” The exhibit proposes practical responses for the future:

[Exhibit] text says, “During the period in which humans evolved, Earth’s temperature and the amount of carbon dioxide in the atmosphere fluctuated together.” An interactive game in the exhibit suggests that humans will continue to adapt to climate change in the future. People may build “underground cities,” developing “short, compact bodies” or “curved spines,” so that “moving around in tight spaces will be no problem.”

In other words, don’t worry, be Eloi! “Short, compact bodies” might also fit the new 23-inch airline seats better. Perhaps critics of Social Security and the Air & Space Museum can develop an exhibition based on Regis Debray’s Modest Proposal: A Plan for the Golden Years.


Book Review: Kysar’s Regulating From Nowhere

Regulating From Nowhere: Environmental Law and the Search for Objectivity.  By Douglas A. Kysar.  New Haven, CT: Yale University Press.  2010.  Pp. vii, 314.  $45.00

Regulating From Nowhere is a beautifully written book that would pay dividends even to the casual reader looking for a sharp treatment of the state of environmental regulation in America.  Beneath the surface, though, it is a powerful argument that our environmental law’s “redacted script”—wherein all our legislated texts of the 1970s, ‘80s, and ‘90s lead inexorably to welfare economics and its reigning orthodoxy, cost-benefit analysis—is leading us away from our ideals.  Kysar makes this argument energetically, even passionately at times.  He shows how, time after time, in context after context, cost-benefit analysis as it’s been structured has failed us in our search for any truly objective measurement of our national commitment to environmental quality as against, say, individual autonomy.  The ideologues who keep insisting still today that “willingness to pay” surveys or the other crude tools economists are taught to use as metrics of valuation are all we have to interpret these statutes will find this book disconcerting, I’m sure.  For it makes no apologies in arguing that we among the living and powerful today have deeper obligations—obligations to other cultures, future generations, and to nonhuman life—than our ‘willingness to pay’ will ever reflect.

Still further below the surface is an incipient attack on the “value monism” inherent in any conception of “public welfare” yet devised.  This is easily the boldest aspect of a bold book and I hope it gets a wider audience than, say, the few hundred legal and economics academics who dwell on the use of cost-benefit analysis in regulation today.  A value monist, in Kysar’s view, sees “environmental values” like clean streams, biodiversity, or functioning wetlands, as fungible benefits that can and ought to be liquidated in some way so that they can be allocated to the highest bidder (usually, the highest bidder of money).  Pluralist or “expressivist” versions of value deny that any such translatability can be achieved, in theory or in practice.  Places and times are unique in their valuations of “organic unities” like clean streams, estuaries, or biodiversity, an argument made by philosophers like G.E. Moore and David Ross many, many years ago.  The problem, of course, is that that mode of valuation is essentially inaccessible to the modern administrative agency.  How would an agency like EPA, the legal embodiment of a large, aggregative jurisdiction, sort out the organic unities that are to be valued as wholes from the commodities or commodity storehouses (like coal mines, corn fields, and cows) on which our modern economy rests?  If EPA’s actual record of regulation prior to the onset of its now enveloping cost-benefit neuroses is any measure, administrative agencies like EPA are just not the kind of institution where organic unities go to be properly valued. Read More


Climate Change

One thing I’ve been thinking as the Gulf oil leak continues is how that catastrophe should influence our environmental priorities.  A lot more was written and said about climate change over the past ten years than about the risks of deep-water drilling.  That doesn’t mean that climate change isn’t a real problem, but is it the #1 problem that we face?  And is it being addressed in the right way?

Sometimes I wonder whether climate change is the modern version of strategic arms talks.  During the Cold War, massive efforts were put into negotiations on limiting increases in nuclear weapons.  That was a real problem, but I think now most people agree that those efforts were largely a waste of time.  They didn’t make the world safer.  What made the world safer was a political change that defused the underlying tension.  Nobody today cares that Russia has lots of nuclear warheads or whether they have more than we do.

Similarly, it seems to me that the solution to climate change is the development of a new and inexpensive energy source, not a new and complicated regulatory scheme for emissions.  I have confidence that governments can speed up the development of the hydrogen car.  I don’t have confidence in their ability to construct or administer cap-and-trade in an effective way.

Don’t Cry for Conchita (or the rest of Dogland)

Today, the WSJ covers a tale of trusts & estates intrigue even more compelling than Leona Helmsley’s:

Her name is Conchita, a thin, spa-loving, diamond-draped heiress, and she’s at the center of one of America’s nastiest estate battles. She is also a dog—a chihuahua who was the favorite of the late Miami heiress Gail Posner, a daughter of the corporate takeover artist Victor Posner. When Ms. Posner died in March at age 67, Conchita and two other dogs inherited the right to live in her seven-bedroom, $8.3 million Miami Beach mansion, their comfort ensured by a $3 million trust fund.

The story reminded me of the following passage from Korzeniewicz & Moran’s 2009 book, Unveiling Inequality:

The magnitude of global disparities can be illustrated by considering the life of dogs in the United States. According to a recent estimate . . . in 2007-2008 the average yearly expenses associated with owning a dog were $1425 . . . For sake of argument, let us pretend that these dogs in the US constitute their own nation, Dogland, with their average maintenance costs representing the average income of this nation of dogs.

By such a standard, their income would place Dogland squarely as a middle-income nation, above countries such as Paraguay and Egypt. In fact, the income of Dogland would place its canine inhabitants above more than 40 percent of the world population. . . . And if we were to focus exclusively on health care expenditures, the gap becomes monumental: the average yearly expenditures in Dogland would be higher than health care expenditures in countries that account for over 80% of the world population. (xv)

Read More

Just What the Oil Industry Needs: More Trade Secrecy

I have tried to give the Obama Administration the benefit of the doubt during the Gulf/BP oil disaster. There was a “grand ole party” at Interior for at least eight years. Many Republicans in Congress would have tried to block nominees for Interior who were committed to a major overhaul of the department’s environmental priorities. But the more I read about the controversy, the harder it gets to excuse current players for their actions. Consider just one issue: the use of dispersants in response to the spill.

As Tom Dickinson’s excellent Rolling Stone article describes the issue,

On May 14th, two days after the first video of the gusher was released, the government allowed BP to apply a toxic dispersant that is banned in England at the source of the leak – an unprecedented practice in the deep ocean. “The effort should be in recovering the oil, not making it more difficult to recover by dispersing it,” says Sylvia Earle, a famed oceanographer and former NOAA chief scientist who helped the agency confront the world’s worst-ever oil spill in the Persian Gulf after the first Iraq War. The chemical assault appeared geared, she says, “to improving the appearance of the problem rather than solving the problem.”

Now we are learning that the some of the dispersants had “no toxicity studies” done to support their use, and we cannot even find out what is in them:
Read More

Oil Addiction?

Responding to the ever-deepening crisis of the BP spill, Andrew Sullivan writes the following:

[Y]ou have to be emotionally and spiritually dead not to watch this and not feel some deep qualms about what our civilization is doing to its environment and to itself. The addiction metaphor – even used by George W. Bush by the end of his term – is the only apposite one. We’re like junkies trying to find a new vein. It keeps us alive and growing, but that simply brings into sharper focus the moral and spiritual costs of exploitation of the earth rather than prudent stewardship.

To sharpen the point, I’d say the impending loss of the gulf is a bit reminiscent of the closing scenes in the film “Requiem for a Dream,” where an addict’s arm is at stake. But another conservative, Jeff Jacoby, takes the following position:

[In 1974,] psychiatrist Thomas Szasz wrote in The New York Times that “oil addiction is equivalent to drug addiction.’’ But it’s not. . . . Americans consume oil not because they are “addicted’’ to it, but because it enriches their lives, making possible prosperity, comfort, and mobility that would have been all but unimaginable just a few generations ago. . . . The United States consumes more than 300 billion gallons of oil per year, nearly two-thirds of it imported. . . . What we have isn’t an addiction, but a blessing.

What I find curious about the professed “conservatism” of Jacoby’s position is that it rests on an attitude of entitlement and self-indulgence that conservatives seem to find repugnant in so many other contexts. As usual, Andrew Bacevich lays out the broader context precisely:

[Mainstream] Democrats agree with Republicans on the “concrete interests” of Americans: preserving what Bacevich calls our “empire of consumption.” ([Bacevich] borrowed the term from Harvard historian Charles Maier.) After WWII, the US was an “empire of production” – “we made the stuff that everybody else wanted.” So the country did not go into debt. “But we have increasingly become a culture that emphasizes consumption – limitless consumption . . . while others, notably China and Japan, have become the source of the goods we consume. There’s something fundamentally out of whack here. This disparity between what we produce and what we consume is simply not sustainable.”

To quantify matters: “Between 1995 and 2005, U.S. consumption grew from 17.7 million barrels a day to 20.7 million barrels a day, a 3 million barrel a day increase. China, by comparison, increased consumption from 3.4 million barrels a day to 7 million barrels a day, an increase of 3.6 million barrels a day, in the same time frame.” In other words, with less than a third of the population of China, the U.S. increased its oil consumption over a decade-long period by nearly the same amount as the entire nation of China began with! We continued building bigger cars, and bigger houses, ever further apart, assuring an ever-deeper environmental footprint.

Given the fungibility of food and fuel, we are effectively starving people to feed cars. The type of lifestyle that Jacoby celebrates may not have been a self-harming addiction as long as the structural violence it fueled was kept far away. Now it’s at the gulf coast. Perhaps Jacoby will “get it” if the loop current feeds tarballs up to the Cape.

Photo Credit: EtienneCoutu.


Book Review: Posner and Weisbach’s Climate Change Justice

Climate Change Justice. By Eric A. Posner and David Weisbach. Princeton, NJ: Princeton University Press.  2010.  Pp. viii, 220.  $27.95.

Everything’s easier with money.  That would have been a good subtitle for this new book by two University of Chicago law professors.  In Climate Change Justice, Posner and Weisbach argue that we have yet to negotiate the “optimal” climate change treaty, that there is still time to do so, that it is imperative that we do so, and that it will remain impossible to do so unless and until we stop commingling what ought to be done about climate change with what ought to be done about past injustices done to other cultures or Nations and/or how much the haves of the world ought to give the have-nots.  In this review, I sketch their expertly developed argument, several of the points they make which I think are quite frankly undeniable, and then finally a few quibbles I have with their underlying assumptions.  All in all, this book is a potent attack on an argument that is growing rapidly in popularity yet declining in clarity and focus.

Posner & Weisbach start from an undeniable proposition: moral arguments that make sense for individual people do not always make sense for nation-states.  Poor nations and, particularly, poor nations in the future are likely to suffer the most from climate change.  Who are these nations and why are they poor?  The answers to those questions are bound up with some of the most intractable moral, causal, and historical disagreements we know today—or are likely to know in the future.  What better way to take a cooperation failure and make it impossibly hard than to combine it with these intractable disputes?  Treating a nation as a unitary entity will lead to pronounced distortions if one does so out of a deontological commitment to persons.  Poor nations are often dominated by rich and powerful people just as rich nations often have many, many millions of poor people.  Posner & Weisbach implore us not to fall victim to the fallacies of composition or division here.  Climate change is already hard enough all by itself.

Chapter 1 provides what must be one of the most comprehensive, comprehensible, and yet still succinct accounts of the science of anthropogenic climate change currently in print.  Part of what nurtures climate change denialism/delayism, in my view, is how often the public gets a mere “arial glimpse” of what we know about climate change and how we know it.  These pathetically oversimplified glimpses are then subject to casual pot shots from all directions, including from the downright deceptive.  The resulting “dialogue” is mired in what looks like ambiguity, debate, and doubt.  People naturally discount the risks under discussion and move on to something more “pressing” in their daily lives.  The result is a systemic failure that is shaping up to be one of millenial proportions.

Read More


Book Review: Burns and Osofsky, Adjudicating Climate Change

Adjudicating Climate Change: State, National, and International Approaches, edited by William C.G. Burns & Hari M. Osofsky. Cambridge: Cambridge University Press, 2009. pp. 399.

“As climate change litigation proliferates around the world, an assessment of what its role is and should be in transnational regulatory governance becomes important.  This volume provides such an assessment by exploring representative examples at subnational, national, and supranational levels.”   So opens a broad collection of papers in this book edited by Burns and Osofsky.  In this short review, I describe those papers and assess the claims Burns and Osofsky advance about the role of “climate change adjudication,” at least indirectly, in their selection and editing choices.  In a nutshell, this volume should be of special interest to the growing ranks of public officials (and public intellectuals) venturing into what is quite simply the biggest, hardest “environmental” problem we have ever faced: globally catastrophic climate change.

The single most effective cost-externalizing technology humanity has ever devised is fossil fuel.  Fossil fuels literally exemplify the microeconomic theory of market failure because they allow users to reap often tremendous rewards while spreading the most potent costs planetarily.  This is much of what makes limiting fossil fuel use so hard.  The collectives of people with real authority and power to do so have lopsided incentives against doing so, especially given the fact that their own self-discipline is guaranteed no absolute efficacy—unless and until others commit as well.

As so obviously tilted as all this is, a great deal of reasonable disagreement still remains surrounding who ought to move first, by what normative means, according to what timetables, at what costs, and pursuant to which authorities.  The norms have yet to be authored that establish which uses of fossil fuels are unduly risky, which uses are justifiable, or for whom.  That is what makes “adjudicating climate change” so unique: it is quite literally a matter of applying norms that do not yet exist.  Burns & Osofsky divide the papers of the volume up into “subnational,” “national,” and “supranational” cases, seemingly in an effort to keep things in jurisdictional perspective.

The first few papers—a paper by Stern on Minnesota’s “externality” reporting law, a paper by McAllister on Australia’s cases involving the recent permitting of new coal mines, a particularly suggestive paper by Trisolini & Zasloff on local land use planning, and a paper by Wood on extending the public trust doctrine to protect the atmosphere—provide vivid and repeated testimony to the nestedness of our jurisdictional systems.  Law in the English-speaking world is innately jurisdictional and jurisdictions are, empirically speaking, highly variable.  Trisolini and Zasloff’s paper rightly points out, for example, that local land use law and policy has perhaps the most powerful influence on our energy consumption patterns but that just understanding what motivates cities and other local government to action/inaction is still maddeningly beyond our capacities.

Read More


Do Initial Allocations of Property Rights Matter?

If the last two years of American economic life have demonstrated anything, it is that property rights are not static.  Sometimes things that were once private property become public property (see, e.g., Motors, General).  Sometimes things that were once public property become private property, then become public property again, before they presumably become private property again (see, e.g., Mae, Fannie).  And sometimes things that were once considered inherently communal and thus inamenable to private property rights at all, become divided and privatized (see,e.g., the air).

Tradeable carbon emissions allowances are an example of the latter.  There’s a lot to like in the cap-and-trade programs proposed under the Waxman-Markey and Kerry-Boxer bills.  I hope some robust version of them passes and becomes law.  But one sticky issue that needs to be resolved is how initial allowances to fill airspace with carbon gases should be allocated.  Options include auctioning off all of the allowances, giving the allowances to existing carbon producers, and, most politically palatable, something  in between — some mixed proportion of free allocations and auctions.


Economist Robert Stavins, in the Coasean tradtion, has insightfully argued that  (with some caveats, including that transaction costs in this cap-and-trade program are similar to the transaction costs in others) the initial allocation of allowances doesn’t matter in most significant ways:  it will have no effect on the distribution of allowances after trading, and will have no effect on the total magnitude of emissions and their attendant social costs.

But there is another factor economists have not addressed, that could effect the total magnitude of emissions and their attendant social costs, and that may well depend in part on the method of initial allocations: compliance.

Law Professor Christine Parker and political scientist Peter May, among others, have demonstrated that compliance with business regulation is highest when the regulated businesses believe that the regulatory regime is fair.  Lower levels of compliance reduce the effectiveness of the regulation in producing the desired outcome, and increase the costs of achieving it.  In the world of carbon emissions, this would mean a higher total magnitude of emissions and a reduced benefit to the public through the higher costs required to achieve them.


My research into Icelandic fisheries suggests that in moving natural resources from communal to private property through cap and trade programs, initial allocations of rights do have an important effect on the perceived fairness of the regulatory regime, and thus on the willingness of the regulated to comply with it.

In Iceland, the government decided to protect fish stocks by freely allocating tradeable fishing rights and implementing catch quotas.  Permits were issued to fishing vessel owners based on their average catches during a three-year test period.  New entrants to the industry must now buy their way in by purchasing or leasing rights from others through the Icelandic Quota Exchange.  Although the system has been successful in reducing the overall catch, the perception that it is unfair has led to open defiance.  In an extraordinary case before the Icelandic Supreme Court, one fishing company did openly what many apparently do quietly — defied the system on the grounds that it was unfair.  

Transactions costs, of course, are inevitable, but it is not transaction costs that have produced resistance to the Icelandic system.  Rather, resistance is itself is a type of transaction cost, broadly construed, produced by the perceived unfairness of the initial allocation of rights.  In other words, the initial allocation of rights does indeed effect the overall effectiveness of a private property system. 

There has been considerable uproar over the potential free allocation rights to current carbon emissions producers.  Whether or not, as a matter of classical economic theory, the initial allocation of rights should effect the overall effectiveness of the program, the perception of fairness or unfairness will probably effect compliance with the system, and that in turn will effect its overall effectiveness.  It is important, therefore, for policy makers to bear in mind that the perceived fairness of initial allocations of property rights does indeed matter.