“Extraordinary” Cannot Become Ordinary
Author
Jay Duffy - Clean Air Task Force
Clean Air Task Force
Current Issue
November-December 2022
Issue
6
Parent Article
How Will West Virginia v. EPA: Impact the Future of Climate Policy?

Congress designed the Clean Air Act as a remedy to the serious and unchecked problem of air pollution. It intended the Act’s implementation to have major consequences. Like many environmental laws, the Clean Air Act’s central provisions for stationary source pollution directs the expert agency to study chronic and developing pollution problems—and curb them with the best pollution control systems. The law does not predetermine the best systems, leaving that to the agency’s career scientists and engineers. Congress equipped EPA with the authority to regularly review and revise standards to control and prevent pollution, protect public health, and safeguard welfare. No “mousehole,” the Act is (and was always understood and intended to be) one of Congress’s most ambitious and successful achievements. Despite West Virginia’s looming, ill-defined major questions doctrine, the public and EPA should not allow for the Act to be denigrated or weakened.

As Justice Scalia and others currently sitting on the Supreme Court have explained over the years, Congress knows that problems and solutions will evolve over time. It therefore intentionally drafts legislation and delegates authority to agencies using vague or general—not to be confused with ambiguous—language “to cover a multitude of situations that cannot practicably be spelled out in detail or even foreseen,” as Justice Scalia and Bryan Garner write in Reading Law. In these cases, courts have historically deferred to an agency’s reasonable application of the broad language Congress passed.

The Court took a stark turn from this consistent understanding in West Virginia, explaining that “in the extraordinary case,” general terms of a statute are insufficient to support a rule. Instead, the agency must point to clear authorization rather than mere “textual plausibility” to “regulate in that manner.” The case is excused from normal canons of textual analysis if the claimed authority is too “major,” according to a grab-bag of fuzzy and indeterminate factors. Yet many of these same Justices rejected that position in their dissent in Massachusetts v. EPA, maintaining that “[n]o matter how important the underlying policy issues at stake, this Court has no business substituting its own desired outcome for the reasoned judgment of the responsible agency.”

West Virginia seems to require a level of specificity in these extraordinary cases that simply does not exist in many statutes. Unlike in prior major questions cases like Gonzales v. Oregon, where Skidmore deference was applied instead of Chevron deference, or in King v. Burwell, where no deference to the agency was granted but the rule was upheld in accordance with the Court’s best reading of the statute, West Virginia demands specific authorization for a particular rule where the Court has deemed it major—or the rule fails.

The stakes are high, and no one knows where the edge of the cliff is. Honest litigants, agencies, and lower courts will be groping around in the dark for principled factors to divine whether a regulation is subject to the clear statement rule instead of normal statutory interpretation. Meanwhile, activists will be able to hide behind “the utter flabbiness of the Court’s criterion,” in the words of Justice Scalia, to reach their preferred outcome.

Consider, however, that the West Virginia majority repeatedly insisted that its major questions framework should apply only in “extraordinary” cases. And even its strongest defenders admitted that the Clean Power Plan raised novel and legitimate statutory questions—particularly in its reliance on credits obtained from zero-emitting generators that were not part of the regulated source category. But if this aspect of the rule was not authorized by statute, the Court should have said so, rather than invoking a highly abstract doctrine that seems to authorize what Adrian Vermeule has called the “extraordinary override of ordinary statutory meaning.” It remains to be seen whether the Court will adhere to its assurances that the doctrine is meant only for rare cases. Certainly, the Court’s characterizations of the Clean Power Plan provide room for distinguishing future rules that rely on less novel applications of the statute.

Surely the fact that a rule is highly consequential is not a basis for special judicial skepticism. The Clean Air Act was intended to do big things. It is, by design, going to result in consequential regulations involving many people, industries, and expenditures. It affects the health of everyone who breathes, and places the burden of cleaning up pollution on the industries everyone relies on. These factors do not make a rule extraordinary. Rather, they are the ordinary consequences of following congressional instruction. The question is simply whether the agency has stayed within the bounds of its authority. If it has not, the regulation is unlawful.

Is the agency acting in a way that is consistent with the statutory instructions from Congress? If so, the major consequences of regulation may just be what Congress intended.

Jay Duffy is an attorney with the Clean Air Task Force. He represented several public health and environmental non-profit organizations in West Virginia v. EPA and argued a portion of the case in the D.C. Circuit Court of Appeals.

The Supreme Court’s Presumption
Author
Lisa Heinzerling - Georgetown University Law Center
Georgetown University Law Center
Current Issue
November-December 2022
Issue
6
Parent Article
How Will West Virginia v. EPA: Impact the Future of Climate Policy?

In three recent cases, the Supreme Court rejected the efforts of administrative agencies to take on “major questions” of public policy because it concluded that Congress had not clearly authorized the agencies to do so. “We expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance,” explained the Court, as it turned aside the Biden administration’s efforts to slow the spread of COVID-19 through rules imposing a national moratorium on evictions, and requiring vaccination or testing of employees in large workplaces. “We presume that Congress intends to make major policy decisions itself, not leave those decisions to agencies,” said the Court, as it scrapped the Obama administration’s rule governing greenhouse gas emissions from power plants.

Notice the double meaning of two pivotal words in the quotations above, describing the mental activity the Court was engaged in: “expect” and “presume.” Each can precede a statement of probable fact; to expect or presume Congress to speak clearly on important questions might reflect a factual judgment that Congress does indeed speak clearly on important questions. “Expect” and “presume” can also reflect an attitude of hierarchical supremacy; to expect or presume Congress to speak clearly on important questions might be a command from the Court to Congress to speak clearly on these matters.

The difference in these two frames of mind is important. If the Court expects Congress to speak clearly on important issues because Congress always or usually does so, then its search for clarity might actually be a genuine search for legislative intent. If, however, the Court expects Congress to speak clearly because it believes that its own institutional position makes it appropriate for the Court to issue legislative drafting instructions to Congress and to make executive power turn on Congress’s compliance with those instructions, then we need to ask why the Supreme Court thinks it is the boss of the rest of government.

By choosing the ambiguous words of “expect” and “presume,” the Court—consciously or not­—obscured the power dynamics underlying its interpretive principle. The same is true of this central passage in West Virginia v. EPA: “In certain extraordinary cases, both separation of powers principles and a practical understanding of legislative intent make us reluctant to read into ambiguous statutory text the delegation claimed to be lurking there.” The Court seemed to signal that Congress does speak clearly on important questions, and that the Court has a legitimate role in commanding Congress to do so where it has not.

The truth is, the Court doesn’t really mean the part about legislative intent. Conservative members of the Court have long told us that legislative intent is a fantasy, and the only reliable meaning of a statute lies in its words alone. Even if the Court did believe in legislative intent, the Court in West Virginia told us—but did not show us—that Congress does indeed speak clearly on questions of great economic and political significance. The Court cited no statutory examples, no empirical studies of legislative drafting—nothing that would bolster a claim that Congress always or mostly speaks with crystalline clarity in tackling major questions of public policy.

Indeed, the Court’s own precedents tell a different story. During the heyday of judicial deference to agencies’ legal interpretations of ambiguous statutes, the Court found ambiguity on such important questions as the application of an air pollution permitting program to stationary sources like power plants, the preemption of state consumer protection laws by federal banking law, the imposition of common-carrier regulation on broadband internet services, and more. During this period, the Court developed a massive body of evidence that Congress often does not speak clearly when it addresses important problems.

If there is no evidence that Congress generally speaks clearly on major questions of public policy, then the only remaining support for the Court’s embrace of the major questions doctrine must come from the “separation of powers principles” alluded to in West Virginia. Chief Justice John Roberts’s majority opinion does not elaborate on these principles, but Justice Neil Gorsuch’s concurring opinion does, as do prior opinions by conservative justices. These writings make clear that the constitutional idea at the heart of the major questions doctrine is the notion that Congress may not delegate legislative power to any other person or entity. Thus, the driving force behind the major questions doctrine is the long-dormant nondelegation principle.

The implications for climate and environmental policy going forward are disquieting. The Court has taken aim not only at executive action but also at congressional power, and in doing so has quietly revived a far-reaching constitutional idea that has lain dormant for almost a century. We are entering uncharted constitutional territory, just when the need for decisive regulatory action has never been greater.

Lisa Heinzerling is the Justice William J. Brennan, Jr., Professor of Law at the Georgetown University Law Center. Her primary specialties are environmental and administrative law.

Reaching an Inflection Point: What’s at Stake?
Author
Kevin Poloncarz - Covington & Burling LLP
Covington & Burling LLP
Current Issue
November-December 2022
Issue
6
Parent Article
How Will West Virginia v. EPA: Impact the Future of Climate Policy?

Like many, I started raising chickens during the pandemic. My father grew up on a chicken farm outside Buffalo, so it’s probably in my blood. For nearly two and a half years, my flock thrived. Over the halcyon days of that first summer, I’d spend a couple hours every afternoon letting them “free range” in my garden, under my watchful eye against the hawks who decimated neighbors’ flocks, while I prepared for oral argument in the D.C. Circuit.

In October 2020, I argued the main statutory point upon which the D.C. Circuit vacated the Trump EPA’s repeal of the Clean Power Plan in American Lung Association v. EPA. My clients included major power companies, which the Supreme Court would ultimately order to appear alongside federal respondents to defend the scope of EPA’s authority in last term’s blockbuster climate case, West Virginia v. EPA. I never imagined that the case I practiced with my chickens would get decided on the last day of the term.

Spending this past summer telling literally thousands via Zoom about the biggest loss of your career is not fun; I can attest. Yet, through all of this, my flock continued to thrive, producing dozens of white, azure-green, and pale brown eggs each week.

On Labor Day, I left my flock here in Napa in the early afternoon, when it was already 109 degrees. I said goodbye to all of them, including Elizabeth, a Speckled Sussex, who was always the first to greet me and demand attention. I returned 50 hours later and Elizabeth was dead, having succumbed to the punishing heat. During that time, California experienced an unprecedented heat wave, with temperatures exceeding 100 degrees for several days in a row and reaching 115 on the day she died. The electricity grid barely scraped by, with demand peaking at an all-time high that day. Somehow, through the planning and diligence of the governor’s team and creative use of the Amber Alert system, blackouts were avoided.

My grief upon losing Elizabeth was and remains immense. It’s rooted in my overwhelming sense that unprecedented heat waves lasting several days can now be expected, and can’t be characterized as aberrations. Thousand-year storms shouldn’t happen five weeks in a row as they did this summer. When I started working on climate issues over 15 years ago, I never imagined impacts like this would occur until I was either retired or dead.

My grief comes from a place of privilege; the loss of a beloved hen pales in comparison to the impacts suffered by frontline communities who can barely afford to feed their families. Yet the depths of my sorrow are likely rooted in the unavoidable admission that my generation failed miserably at taking action to avoid these brutal heat waves and natural disasters.

Passage of the Inflation Reduction Act was cause for celebration, as was a legislative package California passed in September, which codified the state’s goals to achieve net-zero emissions no later than 2045 and an 85 percent reduction in anthropogenic emissions by the same date. I had a small hand in both and know how hard it was to get them done. I also know that such monumental accomplishments are few and far between, demanding political will and compromises that are hard to muster.

And so we still need federal agencies to do the heavy lifting when it comes to hard problems like climate change. But that’s exactly what the majority’s decision in West Virginia denies them the ability to do. If an issue is too big or too important, it will almost certainly be subject to a major questions challenge. As earlier cases from this last term concerning the eviction moratorium or vaccine mandates foretold, this Court will not hesitate to clip the wings of agencies attempting to exercise broad delegations of authority to address large problems.

The Clean Power Plan ultimately proved irrelevant; its goals were achieved a decade in advance, although it never went into effect. So what, then, were we fighting for?

I’m increasingly prone to questions like this, as a childless man who turns 50 next year and whose goats and chickens can’t outlast him. Here’s my take on what the next generation of climate advocates should learn from West Virginia:

First, you’re playing a long game. Having your biggest loss end up as just an inflection point on a longer trajectory toward the ultimate goal might be okay; you’ll survive.

Second, don’t let anyone ever make you think that just because you’re the son of a chicken farmer-cum-steelworker, you’re not entitled to argue hard questions about the quasi-constitutional dimensions of statutory interpretation that the Court had not previously confronted in a majority opinion.

Third, don’t give up, back down, or let my queen Elizabeth’s death be in vain.

Kevin Poloncarz is partner at Covington & Burling LLP. He represented a coalition of major power companies in West Virginia v. EPA, and argued the main statutory point on which the D.C. Circuit vacated the repeal of the Clean Power Plan.

How Will West Virginia v. EPA: Impact the Future of Climate Policy?
Author
Bethany Davis Noll - State Energy & Environmental Impact Center, NYU School of Law
Jay Duffy - Clean Air Task Force
Lisa Heinzerling - Georgetown University Law Center
Kevin Poloncarz - Covington & Burling LLP
State Energy & Environmental Impact Center, NYU School of Law
Clean Air Task Force
Georgetown University Law Center
Covington & Burling LLP
Current Issue
November-December 2022
Issue
6
The Debate: The New Toxic Substances Control Act Is Now Five Years Old: A Report

In a landmark decision at the end of the last term, the Supreme Court ruled that EPA overstepped its authority in designing an Obama-era climate policy to regulate greenhouse gas emissions from the power sector. The majority opinion for West Virginia v. EPA featured the court’s first explicit mention of the major questions doctrine, which (in the Court’s opinion) states that agencies cannot regulate issues of “major economic or political significance”—in this case, “a nationwide transition away from the use of coal to generate electricity”—without congressional authorization.

West Virginia only targeted EPA’s authority under one provision of the Clean Air Act. But the issue remains whether other policies, for climate and beyond, could also become “major questions,” potentially restricting future agency action. That is an important issue, given the congressional gridlock on environmental law over the last few decades.

We ask a panel of experts: What will legal review of climate and other environmental policies look like under the major questions doctrine?

What threshold of economic or political significance might courts apply? How might this doctrine be applied by courts at the federal, state, and local levels? And, perhaps most importantly, how should agencies, industry, advocates—and other groups looking to pursue climate policy and other litigation—move forward?

THE DEBATE Last term’s decision in West Virginia v. EPA only targeted EPA’s authority under one provision of the Clean Air Act. But the concern remains whether other policies, for climate and beyond, could also become “major questions,” potentially restricting future agency action. That is an important issue, given the congressional gridlock on environmental law over the last few decades. What will legal review of climate and other environmental policies look like under the major questions doctrine?

Space Objects a Real Hazard to People, Property
Author
Stephen R. Dujack - Environmental Law Institute
Akielly Hu - Environmental Law Institute
Environmental Law Institute
Environmental Law Institute
Current Issue
November-December 2022
Issue
6

An environmental threat of very real proportions concerns celestial objects such as asteroids that hit the Earth—as everyone knows, one did in the dinosaurs. The same applies in a less dangerous but more frequent manner to unwanted “de-orbiting” of artificial satellites, and to the careless discarding of the boosters used to get them aloft.

As to the first, debris left over from the formation of the solar system pummels our planet on a constant basis—we call these asteroid or comet fragments meteors when they burn up in the atmosphere and meteorites if they hit the ground. As to human-made space debris that can fall to our planet’s surface, “More than 1,000 rocket bodies are estimated to have uncontrollably re-entered the atmosphere in the past 30 years,” according to New Scientist.

Last April, a piece of such artificial space debris, reportedly from a Chinese Long March rocket, hit near a village in India. Two years earlier a part of another Chinese rocket landed in a village in Ivory Coast. No one was harmed in either incident. And readers of a certain age will remember Skylab, the first space station, which fell from orbit in 1979, scattering debris over Western Australia and the Indian Ocean.

Skylab weighed 100 tons and would have caused real damage if it had landed in a populated area. The last few weeks of its existence were met with a worldwide response finding humor in the event—painting rooftop targets, for instance—as technicians desperately succeeded in using the huge satellite’s fuel reserves to wrest it to a safe demise.

But in fact had Skylab landed in Mombasa or Mumbai or Quito, the death toll would have been unimaginable. Because most satellites orbit near the equator and not high up, their debris when atmospheric drag forces them down can land on the largely poor countries of the tropical zone, raising a real environmental justice issue.

So far there have been no casualties from falling artificial space objects, but there are bound to be. Rocket launches have, well, skyrocketed, escalating to well over one hundred per year, and many loft multiple satellites. Scientists at University of British Columbia, New Scientist reports, calculate that the odds are one in ten of “casualties being caused by falling debris over the next decade.”

How can at-risk societies fight back? According to Ram Jakhu of McGill University in Montreal, the United Nations Liability Convention of 1972 comes into play here. The convention has only been used once in this manner, when Ottawa won $2.3 million from the Soviet Union after one of its satellites crashed in Canada in 1978. “I have no doubt there is going to be another serious incident,” according to Jakhu. “There’s a strong probability of hurting somebody or damage to property.”

There is a solution: an international agreement or arrangement such that rocket boosters and satellites contain sufficient surplus fuel—a rounding error in their total mission costs—so they can be brought down safely or be put into a benign orbit. These sort of “best practices” would be easy to put into place on a voluntary basis or by making the liability convention’s provisions dissuade slackers—sort of an astronomic Superfund. It’s not rocket science.

Chances are you won’t have a satellite fall on your head. But humans have in fact been injured by pieces of meteors entering Earth’s atmosphere or by the flash and shock waves they produce. There was the 2013 event in Siberia, mirroring a much more destructive meteorite that hit an uninhabited region in that wilderness in 1908. The recent event did hospitalize people and cause property damage. And it was caught on video by numerous observers.

According to an account on Space.com, the “meteor was a small asteroid—about the size of a six-story building—that broke up over the city of Chelyabinsk, Russia. . . . The blast was stronger than a nuclear explosion. . . . The shock wave it generated shattered glass and injured about 1,200 people.” But, as the Daily Beast reports, “Perhaps the most disconcerting thing about it aside from the damage and injuries it caused to the city was that it went largely undetected by astronomers and asteroid surveyors on the ground.”

In 2002 a small asteroid large enough to cause mass casualties should it hit Earth was given “about a 1 in 9,300 chance of an impact in 2049,” Wikipedia relates. Compare such a risk estimate, in which large swaths of humanity are seemingly at stake, with the response we give to the excess cancers expected at Superfund sites. The asteroid was later found to be benign, but it was a wakeup call to events that are low probability but high impact.

Three years later, Congress mandated that NASA monitor all Near Earth Objects of a dangerous size. In 2016, the Daily Beast notes, “NASA launched the Planetary Defense Coordination Office to identify and respond to any potential comet or asteroid impact endangering Earth.” But, “The task remains undone.”

Just in case, in September NASA impacted a refrigerator-size satellite into an asteroid as big as the Great Pyramid at Giza in an attempt to alter its path. “The target was Dimorphos, a rock orbiting another, much larger asteroid called Didymos,” according to the Washington Post. Scientists picked such a pair because it would be easy to evaluate the effect on the smaller space rock’s trajectory. And Dimorphos was not in danger of hitting Earth, nor could the collision produce a dangerous orbit.

—Stephen R. Dujack

Counting Sheep

A longstanding problem for solar farms has a surprisingly cute solution. “Sheep are the solar industry’s lawn mowers of choice,” writes Amrith Ramkumar in the Wall Street Journal. Farmers maintaining thousands of acres of panels need to contend with tall grasses, which, unabated, can obstruct sunlight. Enter the star of nursery rhymes and an unexpected hero of renewables. Hard-working flocks are now generating millions of dollars in annual revenue by helping to chomp on pesky weeds.

Many grazing animals were initially considered for the role. But some, like cows and horses, were too tall to tidy up grass underneath low-hanging panels. Others, like goats, strayed from the assignment—“chewing on wiring and climbing on equipment,” Ramkumar writes. “Sheep—docile, ravenous, and just the right height—easily smoked the field.”

The recent boom in solar has unexpectedly shot up demand for shepherds, “centuries after [their] breakout roles in the Bible,” Ramkumar writes. He reports that in just four short years, an estimated five thousand acres of solar fields employing sheep in the United States has now grown to tens of thousands, though there doesn’t appear to be an official head count yet.

Finding enough sheep has posed challenges. The Journal notes that while some advanced courses for solar grazing are offered through North Carolina State University and Cornell University, entry-level classes are scarce. Meanwhile, shepherds are already taking out loans to buy more sheep. One shepherd interviewed by Ramkumar spent $500,000 to purchase additional ewes to secure a contract with an energy farm.

The American Solar Grazing Association, a society that this editor is delighted to find exists, touts many other perks for the practice beyond clearing grass. “Solar grazing contributes dairy, meat, and wool to regional markets,” the group’s website notes. “Farm incomes are down, and solar grazing allows farmers to increase and diversify revenues without taking land out of food production.”

The sheep reap benefits too. “The vegetation at solar sites becomes a source of nutrition and a pasture” for these “resourceful foragers,” who “enjoy the shade of the solar panels on hot days, napping and grazing where humans would struggle to reach,” the association notes. “Some of the animals like being petted while they graze,” notes the Journal—adding up to a seemingly ideal workday for these high-in-demand flocks.

The phenomenon brings full circle the use of once arable farmland now occupied by solar panels. From up above, grazing sheep look like fluffy white clouds slowly moving under huge, sleek mirrors. Just like old times, shepherds use dogs to fend off predators and herd the sheep when necessary. They haul in food, pump water, and even set up enclosures for the sheep to sleep in. For those in the business of renewable energy and sheep, “It’s changing all of our lives,” says farmer Ely Valdez.

—Akielly Hu

Notice & Comment is the editors’ column and represents each writer’s views.

Greenhouse Carbon Dioxide Now Legally an “Air Pollutant”

When the Supreme Court restricted the ability of the Environmental Protection Agency to fight climate change this year, the reason it gave was that Congress had never granted the agency the broad authority to shift America away from burning fossil fuels.

Now it has.

Throughout the landmark climate law, passed this month [August], is language written specifically to address the Supreme Court’s justification for reining in the EPA, a ruling that was one of the court’s most consequential of the term. The new law amends the Clean Air Act, the country’s bedrock air-quality legislation, to define the carbon dioxide produced by the burning of fossil fuels as an “air pollutant.”

That language, according to legal experts as well as the Democrats who worked it into the legislation, explicitly gives the EPA the authority to regulate greenhouse gases and to use its power to push the adoption of wind, solar, and other renewable energy sources.

—New York Times

In 2020 and 2021 alone, the world added 464 gigawatts of wind and solar power-generation capacity, which is more power than can be generated by all the nuclear plants operating in the world today.

—Farhad Manjoo in
the New York Times

Dodging Falling Rockets and Errant Minor Asteroids.

Framing West Virginia v. EPA for Tomorrow's Leaders
Author
Jordan Diamond - Environmental Law Institute
Environmental Law Institute
Current Issue
September-October 2022
Issue
5
drawing of Jordan Diamond, a woman with long dark hair in a blazer

When the pandemic started, it seemed you couldn’t turn a page or open an email without seeing “unprecedented” used in one context or another. And it was true—we were in uncharted territory, and among everything else, it was hard not to keep returning to that locution. I clearly remember sending a mass email using the word, thinking I was the first person to stumble upon this apt descriptor; little did I know how ubiquitous it would become.

In the wake of the West Virginia v. EPA decision, issued on the last day of the Supreme Court’s term, the word possibly on the same trajectory is “disheartening.” It’s the first word I found, and—proving I’m never as original as I think I am—as analyses continue to dissect the majority, concurrence, and dissenting opinions, “disheartening” is appearing with growing frequency.

For so many, the past few weeks have been a blur of questions from people outside our profession, asking whether West Virginia “hamstrings” domestic climate action. My reply: That depends on what you mean by hamstring.

Does the decision sever EPA’s regulatory muscle? No. This was a relatively narrow holding around the agency’s Clean Air Act Section 111(d) authority and its ability to mandate that fossil-fuel-fired power plants switch their energy generation. The government has myriad options remaining for addressing greenhouse gas emissions at both the federal and state levels.

But does it strain that muscle? Yes, even if only from the perspective that it makes many needed actions that much harder. The full implications of the strain, and how long it will take to fully recover, remains to be seen.

Which is why I think people are gravitating toward “disheartening.” There is no doubt that attempts to mitigate climate change domestically will continue, at the federal level but also importantly at regional, state, and local levels. But at a time when many are struggling to maintain optimism in the face of this existential threat, and have been looking to our bedrock institutions and leaders to help steer a path forward, West Virginia made it that much harder to take essential next steps.

It’s also an apt word because many felt the decision was unnecessary, as the Clean Power Plan targets had largely been reached, compliance timelines had lapsed, and the administration argued it had no plans to enforce it.

There are many issues flowing from the decision, from the state of Section 111(d), to the effect on other Clean Air Act provisions, to the boundaries and effect of the emerging “major questions doctrine.” ELI is deeply invested in the outcome of these issues, for environmental and energy law and policy and for the future of administrative law more broadly.

But one thing receiving a bit less attention right now—and one which I think is critically important—is the effect this decision will have on tomorrow’s leaders. During my years in an academic institution, countless students talked to me about how daunting the climate change challenge is, and how difficult it is to maintain confidence given the magnitude of response required and slow acceleration observed to date.

Against this backdrop, West Virginia suggests that, regardless of purpose or cause, agencies may only take significantly impactful action if Congress explicitly spells out how to do so—which has long been anything but the norm for our federal legislature. Instead of incentivizing large-scale regulatory response, the decision incentivizes regulators to bite-sized measures that may have significant impact perhaps only in the aggregate. I worry about the effect of that signal on the next generation. Perhaps successfully passing climate legislation will help send a counter-signal that accelerating action is possible, but that remains to be seen.

Over the next few months, and then years, we’ll start to see ripple effects of West Virginia in the regulatory, judicial, and legislative landscapes. From the proposed SEC climate disclosure rule to potential federal legislation, we will get a glimpse of the breadth and depth of how “major questions” arguments may affect or limit agency actions, not only in the climate context but in an array of other circumstances as well.

In the meantime, I hope we find more ways to inspire and encourage tomorrow’s leaders.

On the Supreme Court's Direction.

Cut All Fossil Fuel Production, Not Just Methane
Author
Kassie Siegel - Center for Biological Diversity's Climate Law Institute
Center for Biological Diversity's Climate Law Institute
Current Issue
May-June 2022
Issue
3
Parent Article
Opportunity Knocks to Cut Methane. Can We Rise to the Occasion?

If carbon dioxide is the fossil-fueled broiler of our heating planet, methane is a blow torch. Wherever it’s found, methane heats the atmosphere 86 times more than carbon dioxide over a 20-year period. And methane is everywhere, leaking at every stage of the fossil fuel lifecycle—from fracked oil and gas wells to abandoned coal mines to pipelines to your own gas stove.

That matters because fossil fuels are both the largest source of methane emissions in the United States and by far the greatest cause of the climate crisis overall. 85 percent of U.S. greenhouse gas pollution and 75 percent of global greenhouse gas pollution come from oil, gas, and coal.

To preserve a livable planet, methane emissions must be slashed from the energy sector, along with all others, as quickly as possible. But crucially, methane reductions must be achieved in conjunction with—not instead of—a rapid phaseout of all fossil fuel production and use.

Methane reductions alone are simply not enough. Imagine a cauldron on a hot stove, heating up until the boiling water threatens to overflow. Making quick and deep methane cuts is like throwing in chunks of ice to cool the temperature. But the only way to stop the pot from overheating is to shut off the gas—put an immediate cap on fossil fuel production and rapidly phase it out.

Limits on fossil fuel production are the essential missing policy piece, because even as greenhouse gas emissions are rising globally, fossil fuel producers are pushing for more extraction. In fact, there’s already more than enough oil, gas, and coal in development globally to heat the planet far beyond 1.5 degrees Celsius—a critical threshold scientists warn the planet must not surpass.

Scientists project an additional half degree of warming above that guardrail would double the number of people facing water shortages and expose an additional 23 percent of the world’s population to severe heat waves, droughts, and flooding. Ice-free Arctic summers would be ten times more likely, along with greater risk of the collapse of the Greenland and Antarctic ice sheets and resulting multi-meter sea-level rise. Species extinction risk would dramatically increase, and coral reefs would virtually disappear.

As a relatively quick and affordable step to avoid these harms, methane cuts are getting overdue attention. A major 2006 study by EPA shows the benefits of methane reductions that are low-cost and, in some cases, cost-positive—the polluter can make money by stopping the methane leakage.

Methane reductions are relatively inexpensive and offer a wide array of benefits, as Drew Shindell and other scientists have demonstrated. Because higher methane levels lead to more health-harming ground-level ozone, a strong methane-reduction strategy could save hundreds of thousands of lives per year from the ozone reductions alone, in addition to reducing ozone-related crop damage. Methane reductions can also help slow the rapid heating of the Arctic by reducing warming during the spring ice-melt season.

Despite the fact that methane reductions are a relatively cheap and easy way to get phenomenal benefits, industry has fought regulations at every turn. Thus, nearly 16 years after EPA’s landmark report, methane emissions have barely budged. And because emissions of this gas from the fracking-induced oil and gas production boom are not properly accounted for, methane emissions are far worse than those figures show.

Fossil fuel producers have understood climate science for over half a century. But instead of adapting their business, they embarked on an aggressive disinformation campaign—based on the tobacco industry’s playbook—to confuse people and block solutions. And make no mistake: They’re still employing these tactics today, along with more subtle and insidious greenwashing. Our planet burns while fossil fuel corporations reap record profits, and Russia funds its brutal war with oil, coal, and methane gas export revenue.

The fossil fuel industry must be regulated; those profits must be used to properly seal and remediate every well and fix every methane leak. These climate-saving and job-creating actions must be paired with a rapid phaseout of fossil fuel production and a massive, equitable buildout of truly green, renewable energy.

Methane reductions have to be part of a transformative global effort to protect our planet from fossil fuel profiteers. Anything less will put us on a catastrophic path to an unrecognizable world.

Kassie Siegel is the director of the Center for Biological Diversity’s Climate Law Institute.

Clean Up Air Pollution for Our Health
Author
Liz Scott - American Lung Association
American Lung Association
Current Issue
May-June 2022
Issue
3
Parent Article
Opportunity Knocks to Cut Methane. Can We Rise to the Occasion?

The health community is starkly aware of the harms of oil and gas production. The extraction, transportation, and storage of oil and gas results in the release of methane emissions into the atmosphere at every step in the process, with serious health consequences.

Methane is a greenhouse gas more than 80 times as powerful as carbon dioxide. Climate change is leading to a range of health threats—including longer allergy seasons, increased risks from vector-borne illnesses like Lyme Disease, extreme heat, and more frequent and intense flooding and wildfires. These health impacts are not far-off occurrences. Health professionals right now are responding to the crises created by climate change. Each time an extreme weather event or a wildfire strikes, healthcare systems are disrupted.

Methane is not the only danger from the burning of oil and gas. Alongside methane, air pollutants called volatile organic compounds, or VOCs, are emitted. These include gases like benzene and formaldehyde, which are known carcinogens. VOCs increase the risk of developmental and neurological disorders. To make matters worse, they also interact with sunlight to form ground-level ozone pollution, which causes asthma attacks, heart attacks, strokes, increases in hospital admissions, and premature death.

There are likely children playing outside whose parents would never expect that their health is at risk simply by breathing. An estimated 17.6 million people live within one mile of an oil or gas well, putting them at immediate risk from the air pollutants released along with methane. The situation is like rubbing salt in a wound, because as methane is fueling climate change, climate change is making air pollution worse.

This is why the health community supports the strengthening and rapid finalization of a recent proposal from the Environmental Protection Agency that would clean up pollution from oil and gas wells. Over 50 national, state, and local health organizations submitted comments to EPA urging the quick adoption of a strong rule limiting methane pollution. The agency should improve its proposal to provide greater immediate health benefits by reducing air pollution in the following ways.

First, EPA must require that all wells are subject to frequent leak detection and repair inspections. Some wells near the end of their lifespans are kept running because it is expensive to decommission them. While some of these so-called “stripper wells” are low emitters, others emit higher levels of methane, and it’s difficult to predict which is which. Therefore, a broadly applicable system of monitoring and repair is necessary.

Second, routine flaring must be prohibited. Flaring is a widely used practice to dispose of methane that is not captured. The process can still result in emissions of methane and VOCs if the gas is not completely combusted. Even when combustion is complete, flaring methane gas still releases carbon dioxide. Flaring also generates nitrogen oxide emissions, which pose an immediate threat to health in communities near the site and can react to form ozone and particulate matter pollution in the atmosphere.

Oil and gas wells are disproportionately placed in low-income communities and communities of color. That means that exposure to the air pollution released alongside methane are compounding other social determinants of health that often negatively impact residents. It’s imperative that frontline communities are included, consulted, and collaborated with when it comes to actions that could alleviate—or worsen—their exposure.

And lastly, EPA has a responsibility to clean up abandoned wells that continue to release methane even when they are not actively used. While this issue of cleaning up orphaned wells is not within the scope of the most recent EPA proposal to reduce methane, it’s a problem in need of greater attention.

In order to best protect public health now and into the future, the country needs to accelerate toward zero-emission transportation and power sectors. And when I say zero-emission, I mean zero-emission. It would be a false solution to focus on reducing greenhouse gases by shifting to sources that still emit air pollution. Energy sources like biomass burning still put the health of nearby communities at risk from harmful air pollution.

The science is clear. We have an extremely short window of time to act if we are to prevent catastrophic climate impacts. Cleaning up methane pollution is a critical part of the solution. The good news is—we have proven technology to cut methane pollution from the oil and gas sector! And better news, we know that when we cut methane, we also reduce additional pollution that causes illness and even death. Federal limits to curb methane emissions from the oil and gas sector could be a huge win for Americans’ health, if we are bold enough to take action.

Liz Scott is the national advocacy director for healthy air at the American Lung Association, where she pushes for science-based clean air and climate protections in federal policy.

Valuing Pollution Reductions in Premature Mortality Risk Cuts
Author
Joseph E. Aldy - Harvard Kennedy School
Harvard Kennedy School
Current Issue
May-June 2022
Issue
3
Joseph E. Aldy

The International Monetary Fund estimates that the burning of fossil fuels imposes $2 trillion in damages around the world each year through air pollution-related premature mortality. Some industries, such as coal-fired power plants, impose pollution-related damages that, when monetized, exceed their contributions to the nation’s gross domestic product. The Environmental Protection Agency estimates its regulatory actions that reduce mortality risk deliver benefits valued at about $10 million per avoided fatality. How do analysts value changes in mortality risk, and what are the implications for environmental policy?

The value of statistical life reflects the willingness to pay across a population for a small change in risk borne by that grouping. Consider a proposed regulation that would reduce the risk of dying by one in a million for a population of one million individuals. Suppose that each individual would be willing to pay $10 for this modest reduction in risk. Overall, this rule would reduce one statistical fatality—multiply the 1/1,000,000 risk over 1,000,000 people. As a measure of this whole population’s value for the risk reduction, the aggregate willingness to pay would be $10 million.

The challenge lies in finding out how much individuals are willing to pay for mortality risk reduction. For a common product—such as coffee—economists can estimate the willingness to pay for by observing the price people pay when they buy a cup at a cafe. An individual who pays $2 for a cup of coffee reveals that the coffee delivers benefits that they value of at least $2, otherwise they would not have bought it. For mortality risk, however, a person cannot simply walk into a drug store and buy a vial of mortality risk reduction. So there aren’t simple transaction data in markets for mortality risk reduction, like there are for coffee, that would clearly reveal individuals’ values for lower risk.

The most common approach for circumventing this problem has focused on evaluating the details of transactions in markets—taking a job, buying a car, etc.—in which mortality risk is an attribute associated with a transaction. Some jobs expose workers to injury risks, which, in some cases, could be fatal. Some cars have safety features so that, conditional on being in an accident, the occupants are less likely to suffer a fatal injury. Economists can take data on these transactions—the wages workers receive, the prices paid for cars—and decompose them into various factors contributing to the observed wage or price, including the associated mortality risk. Thus, the component of the wage that pays a worker for bearing the risk of a fatal injury on the job reveals how the worker trades off income for small changes in mortality risk. This can then be transferred to the regulatory policy context to illustrate how much individuals would value rules that reduce their exposure to mortality risk.

Applying measures of the value of a statistical life to EPA rules, especially regulations authorized under the Clean Air Act, illustrates the large benefits of these regulations, as I indicated in a previous column [November/December 2020]. Since 1997, CAA rules had estimated monetized annual benefits of $27 billion, more than 16 times their estimated annual costs. The single largest category of benefits in these rules is reduced premature mortality risk, especially from lower exposure to fine particulate matter pollution. This shows how an understanding of how much individuals are willing to pay to reduce mortality risk can illustrate the very large social returns—i.e., the benefits individuals across our society enjoy—of pollution reduction.

While CAA regulations have large, positive net social benefits, the rules are not designed to maximize these benefits. Different provisions of the statute establish various criteria for EPA in setting goals for and in designing regulatory actions, but none of these employ a benefit-cost standard. Indeed, one implication of total benefits exceeding total costs by a factor of 16, on average, is that there are a number of rules that would likely have been more ambitious in cutting emissions if they had relied on benefit-cost analysis for setting the stringency of the standard.

Such analyses show that there are considerable incremental benefits—likely to continue to exceed incremental costs—from further reductions in pollution that contribute to premature mortality. And as recent scholarship reveals the significant mortality risk associated with a changing climate, future regulations that reduce greenhouse gas emissions are likely to deliver large benefits to the American population.

Valuing Pollution Reductions in Premature Mortality Risk Cuts

Incentives Take Center Stage, With Mandates an Endangered Species
Author
Bob Sussman - Sussman and Associates
Sussman and Associates
Current Issue
March-April 2022
Bob Sussman

For decades, the holy grail for climate advocates has been a binding cap on emissions—one that declines over time and aligns with national emission goals. However, this tool has never been broadly accepted and recent legislative and legal developments threaten to further limit its role in national climate policy. In the absence of mandates, we are turning to less-prescriptive tools that incentivize but do not require emission cuts. How these tools perform against our ambitious targets for greenhouse gas reductions is the central unknown in climate policy.

The best known mechanism for setting mandatory limits on GHG emissions is cap-and-trade. While it has been used successfully for conventional pollutants under the Clean Air Act and adopted by California and Northeast states for GHG emissions, intense opposition to cap-and-trade doomed the comprehensive 2009 Waxman-Markey climate bill and effectively foreclosed national climate legislation for over a decade.

To fill the legislative vacuum, the Obama administration adopted the 2015 Clean Power Plan for the electric power sector under the CAA. The CPP set state-by-state emission budgets for electricity generators premised on increased reliance on natural gas and renewables to replace coal. However, the CPP was stayed by the Supreme Court in 2016 and abandoned by the Trump administration.

The Biden presidency revived an expansive climate agenda, pledging to reduce emissions by 50-52 percent from 2005 levels by 2030. This aggressive goal demanded ambitious climate policies and, as in 2009, Democrats turned to Congress. A favored legislative option was an enforceable national clean energy standard that would set progressively more stringent targets for “clean” electricity.

However, the CES did not meet the strict criteria for the Senate budget reconciliation process, the vehicle for advancing the administration’s comprehensive Build Back Better package without a filibuster. To satisfy Senate rules, Democrats substituted the Clean Energy Performance Program, a $150 billion system of payments and penalties intended to compel utilities to increase clean electricity to 80 percent of total generation by 2030.

The CEPP was a mandate in fact if not in name and was unacceptable to Senator Joe Manchin of West Virginia, a Democrat whose vote was essential to put BBB across the finish line. Manchin opposed the CEPP as a blunt instrument to force power producers to close coal- and gas-fired power plants by imposing costs that made their operation uneconomic.

At the same time, Manchin signaled his openness to using incentives and subsidies to accelerate clean energy investment. After the CEPP was removed from BBB to mollify him, what remained was a $550 billion non-regulatory package that included $325 billion in tax incentives for clean energy, advanced manufacturing, and electric vehicles. The fate of BBB is still uncertain but there is widespread Democratic support for salvaging its climate package—which may still be enacted either alone or as part of a scaled-back BBB.

The demise of the CEPP prompted renewed interest in controlling utility emissions using existing authorities, but the revival of broad regulatory mandates under the CAA may soon receive a crippling blow. The Supreme Court recently agreed to review a D.C. Circuit decision vacating the Trump replacement for the Clean Power Plan, the Affordable Clean Energy rule, which rejected EPA’s authority to require power plants to convert to clean fuels. The Court’s conservative majority may use the case to hold that such expansive mandates violate the major question doctrine, which disallows federal regulations with sweeping effects on the economy absent clear congressional intent.

If mandates are foreclosed under existing law and are anathema to Congress, financial inducements on the BBB model will necessarily play a more prominent role in reducing emissions. This may not be a bad thing. The utility and transportation sectors are already investing heavily in zero-emission strategies, and an infusion of federal dollars will pave the way for more rapid deployment of renewable power and electric vehicles. But the pace of decarbonization will be driven by market forces as opposed to regulation. Policymakers will thus have limited ability to assure that the beneficiaries of federal largess achieve the rapid reductions in emissions needed to stave off catastrophic climate change. In this new environment, progress will depend on public opinion, technological advances, business leadership, and whether tax breaks and subsidies boost return on investment. Will this be enough?

Incentives Take Center Stage, With Mandates an Endangered Species

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