Why Michigan v. EPA Requires that the Meaning of the Cost/Rationality Nexus Be Clarified

This article examines the recent decision in Michigan v. EPA, in which the U.S. Supreme Court held that the EPA acted unreasonably in not considering costs at the listing phase of the regulation of power plants’ emissions under a specific provision of the Clear Air Act (CAA). In Michigan, the Court interpreted the applicable statutory provision based on the principles of rational administrative decision-making, thereby establishing a connection between cost consideration by administrative agencies and the principles of reasonable exercise of administrative discretion. We contend that Michigan failed to properly appreciate the logical and axiological connection between cost consideration and administrative rationality (i.e., the cost/rationality nexus). More specifically, the Court failed to distinguish between two independent steps of cost consideration: cost determination and cost quantification. Cost determination considers that one set of relevant interests must be made a cost upon someone else, and decides how to allocate rights between competing interests. This decision rests on political considerations and moral factors that are independent of the concept of cost. Cost quantification requires deliberating to what extent one set of interests should be made a cost upon someone else. Unlike cost determination, cost quantification is logically based on the concept of cost. Cost quantification assumes cost determination in order to function. The failure to appreciate this distinction led to illogical reasoning by the Court and to a decision that is inconsistent with Congress’ cost determination. This paper contributes to the legal-economic literature on cost-benefit analysis (CBA) by outlining a functional dimension of cost consideration by administrative agencies that is frequently overlooked in legal-economic literature. While CBA proponents often note that cost consideration provides agencies with a method for promoting social welfare maximization, we emphasize that cost consideration enhances the rationality of administrative action by ensuring a transparent and accountable definition of the set of relevant interests that underpins the definition of costs and benefits

The Role of Science in Bridging the Climate Divide in the Wake of the 2021 IPCC Sixth Assessment Report and the Glasgow Climate Pact

Climate governance is perennially complex, as climate change is the quintessential global collective action problem: it affects those who do not contribute to it while the benefits of climate change mitigation measures are not restricted to those who pursue such a climate- conscious path. Nowadays, climate governance has proven particularly tortuous due to conditionality and equitable concerns informing parties’ nationally determined contributions for the mitigation of greenhouse gas emissions under the Paris Agreement on Climate Change. In this scenario, sound scientific evidence, which is defined in this Essay as the evidence that is based on the best scientific assessment available, is of paramount importance to effective climate governance. It provides a common denominator for developing and developed countries alike, with clear parameters for required policies within specific time frames, potentially reducing transaction costs for all involved parties. Accordingly, research on this topic is of academic and practical relevance. As such, this Essay discusses the current challenges that climate governance faces, focusing on the linkages between the scientific evidence unveiled in the 2021 IPCC Sixth Assessment Report and the urgent global need for curbing green-house gas (“GHG”) emissions from all parties of the UNFCC and its umbrella treaty, namely, the Paris Agreement. This Essay concludes that, in aggregate, the scientific findings provided in the 2021 IPCC Report were significant for overcoming the stalemate that have characterized climate governance. In particular, it was consequential for overcoming the climate divide specifically manifested in previous attempts to implement the market-based and non-marked mechanisms of Article 6 of the Paris Agreement

The United States Climate Change Policies and COVID-19: Poisoning the Cure

Climate change is complex during the best of times. It is commonly conceptualized as the quintessential global collective action problem: it affects those who do not contribute to it while the benefits of climate change mitigation measures are not restricted to those who pursue such measures. This conceptualization illustrates the high transaction costs involved in domestic policies as well as in international agreements addressing climate change, and it is of academic and practical interest. As such, this Article discusses the current challenges that climate change policies face, focusing on the linkages between the climate change policies of the Trump administration and the COVID-19 pandemic and on the effects of those linkages, both in the United States and globally. Specifically, this Article addresses the Trump administration’s attacks on climate science and its deregulatory climate agenda, as well as the United States’ withdrawal from the Paris Agreement on Climate Change. In addition, it discusses principles of international law and the challenges related to state liability for environmental harms in the context of the COVID-19 crisis. This Article also assesses how the United States’ climate policies are likely to aggravate inequalities both domestically, as well as globally, in the aftermath of the pandemic. This Article offers several original contributions. First, it provides a unique assessment of how the deregulatory climate policies implemented nationally and internationally by the Trump administration have magnified the COVID-19 crisis. Second, the law and economics methodology used in this Article validates the claim that improving environmental quality is connected to optimizing early regulatory action. Third, this Article discusses the challenges of state liability for climate harms in the aftermath of the United States’ withdrawal from the Paris Agreement and concurrent COVID-19 pandemic. Finally, this Article offers relevant insights for the literature on climate change that are likely to be applicable to critical future situations, whether they are health-related, a global economic crisis, or climate-related emergencies. Ultimately, this Article concludes that, in the aggregate, all such climate change policies have contributed to increased pollution, including elevated greenhouse gas emissions that have aggravated pre-pandemic inequalities embedded within the United States and among countries. Consequently, the domestic and international policy choices of the Trump administration are worsening the impact of the pandemic, particularly for those in more vulnerable positions, as well as indelibly poisoning the global commons. Keywords: climate change, climate policy, international environmental law, international law, international energy law, COVID-19, pandemic, deregulation, Trump administration, Paris Agreement, international liability, climate harm, inequality

The interplay of judicial review and federalism choices in Brazil after the Republican Constitution of 1988

This thesis investigates how federalism choices adopted by the Brazilian Constitution of 1988 impacts judicial review. In order to address this central question, this work was structured in three sub-questions designed to study specific federalism constitutional options pertinent to all distinct levels of Brazilian federalism, namely: federal union, states, and municipalities. The first sub-question targets the inclusion of local governments as autonomous constitutional agents. It considers annexation law as a proxy for local powers, comparing the decisions of the Brazilian Supreme Court (STF) to its U.S. counterpart (U.S.S.C.) in annexation cases. We conclude that the inclusion of municipalities in the Constitution of 1988, as of today, is not necessarily an example of successful design. We also find, counter-intuitively, that the USSC has been more active in the protection of rights than the STF. The second sub-question refers to the constitutional option granted to state supreme courts in creating specialized panels – and if differences across Brazilian state supreme courts when deciding cases of abstract review can be attributed to specialization. Using empirical methods, we find some evidence that the existence of specialized panels matters for the likelihood and rates of dissent as well as duration of procedures, but not for other variables. The final sub-question addresses the constitutional mechanisms of appointing justices to the Brazilian Supreme Court (which was transplanted from the U.S. Constitution) and its consequences for the adjudication of federative conflicts. Our research focuses on the alignment between revealed judicial preferences when adjudicating cases and presidential appointments in Brazil. We find some empirical evidence that judicial preferences do matter, but the patterns of politicization are weaker than in other similar courts. Our findings are sufficient to dismiss legalist accounts as well as accounts based on the Roman-Germanic tradition. Federal dynamics and constitutional politics are intrinsically related to the three sub-sets of problems proposed and are considered in light of political economy factors

Should Local Governments be Included in the Constitution? A Comparative Analysis Between the U.S. and Brazilian Supreme Courts’ Reasoning Regarding Annexation Laws

Annexation of local governments is a contentious topic. Litigation of annexation often addresses important constitutional provisions, such as property rights, federalism, limitations to police powers, equality and, more specifically, the Voting Rights Act. The United States Constitution is famously silent about local governments. In light of this omission and considering individual constitutional rights, would it make a difference to have local governments in the constitutional text? And to whom would it matter the most? This research developed an original dataset to answer those questions. This article focuses on annexation as proxy for local powers, and it compares the U.S. federalism scheme with the Brazilian unprecedented experience of leveling local governments alongside the states and the federal union in the Constitution of 1988. This research is unique in its comparison of the reasoning of the U.S. Supreme Court (U.S.S.C.) and its Brazilian counterpart, the Supremo Tribunal Federal (S.T.F.), with regard to annexation laws. The main contributions of this study to the literature are straightforward. First, it advances the literature on constitutional design by focusing on local governments, instead of states and the federal union. Second, and related to such an advancement, this paper departs from traditional federalism comparisons which were restricted to developed countries. Third, this research provides evidence contradicting previous claims that the U.S. constitutional omission of local governments was a failure of constitutional design relating to future matters. In addition, this study analyzes the consequences of the Brazilian constitutional design. This article concludes that there is no evidence supporting the proposition that the inclusion of municipalities as federal actors is necessarily superior to the current comparative trend that uses the dual spheres system of the U.S. federalism as a paradigm. Therefore, this research leads to unexpected results and provides evidence that contradicts the understanding of the U.S. constitutional omission of local governments as a failure of constitutional design

The Role of Science in Bridging the Climate Divide in the Wake of the 2021 IPCC Sixth Assessment Report and the Glasgow Climate Pact

Climate governance is perennially complex, as climate change is the quintessential global collective action problem: it affects those who do not contribute to it while the benefits of climate change mitigation measures are not restricted to those who pursue such a climate- conscious path. Nowadays, climate governance has proven particularly tortuous due to conditionality and equitable concerns informing parties’ nationally determined contributions for the mitigation of greenhouse gas emissions under the Paris Agreement on Climate Change. In this scenario, sound scientific evidence, which is defined in this Essay as the evidence that is based on the best scientific assessment available, is of paramount importance to effective climate governance. It provides a common denominator for developing and developed countries alike, with clear parameters for required policies within specific time frames, potentially reducing transaction costs for all involved parties. Accordingly, research on this topic is of academic and practical relevance. As such, this Essay discusses the current challenges that climate governance faces, focusing on the linkages between the scientific evidence unveiled in the 2021 IPCC Sixth Assessment Report and the urgent global need for curbing green-house gas (“GHG”) emissions from all parties of the UNFCC and its umbrella treaty, namely, the Paris Agreement. This Essay concludes that, in aggregate, the scientific findings provided in the 2021 IPCC Report were significant for overcoming the stalemate that have characterized climate governance. In particular, it was consequential for overcoming the climate divide specifically manifested in previous attempts to implement the market-based and non-marked mechanisms of Article 6 of the Paris Agreement

Why Michigan v. EPA Requires that the Meaning of the Cost/Rationality Nexus Be Clarified

This article examines the recent decision in Michigan v. EPA, in which the U.S. Supreme Court held that the EPA acted unreasonably in not considering costs at the listing phase of the regulation of power plants’ emissions under a specific provision of the Clear Air Act (CAA). In Michigan, the Court interpreted the applicable statutory provision based on the principles of rational administrative decision-making, thereby establishing a connection between cost consideration by administrative agencies and the principles of reasonable exercise of administrative discretion. We contend that Michigan failed to properly appreciate the logical and axiological connection between cost consideration and administrative rationality (i.e., the cost/rationality nexus). More specifically, the Court failed to distinguish between two independent steps of cost consideration: cost determination and cost quantification. Cost determination considers that one set of relevant interests must be made a cost upon someone else, and decides how to allocate rights between competing interests. This decision rests on political considerations and moral factors that are independent of the concept of cost. Cost quantification requires deliberating to what extent one set of interests should be made a cost upon someone else. Unlike cost determination, cost quantification is logically based on the concept of cost. Cost quantification assumes cost determination in order to function. The failure to appreciate this distinction led to illogical reasoning by the Court and to a decision that is inconsistent with Congress’ cost determination. This paper contributes to the legal-economic literature on cost-benefit analysis (CBA) by outlining a functional dimension of cost consideration by administrative agencies that is frequently overlooked in legal-economic literature. While CBA proponents often note that cost consideration provides agencies with a method for promoting social welfare maximization, we emphasize that cost consideration enhances the rationality of administrative action by ensuring a transparent and accountable definition of the set of relevant interests that underpins the definition of costs and benefits

Legal Issues in Oceanic Transport of Carbon Dioxide for Sequestration

A number of large facilities intended for the permanent sequestration of carbon dioxide are being developed in the United States. Several of them will be located in Texas and Louisiana on or near the coast of the Gulf of Mexico, making them easily accessible to ships. At the same time, there is substantial interest in Europe in installing equipment to capture carbon dioxide from certain industrial operations before it is emitted into the atmosphere, but currently there are inadequate facilities existing in Europe to sequester much of this carbon dioxide. Therefore, there is interest in the possibility of using ships to transport the carbon dioxide that has been captured in Europe to the United States for sequestration. This report examines the laws that could be applicable to this shipping. Much of the report would also be relevant to the shipping of carbon dioxide from other origins to other destinations, though domestic laws at either end of the trip may also be relevant. This report, which is the first to comprehensively study international transport of carbon dioxide, makes several original contributions. First, it highlights the current legal uncertainties involving the cross-border shipping of carbon dioxide for sequestration. Second, it illustrates how market-based mechanisms under the Paris Climate Agreement do and do not relate to carbon dioxide shipping and sequestration, and the need for clarification. Third, the report provides a detailed analysis of the domestic U.S. laws applicable to the cross-border shipping and sequestration of carbon dioxide, and analyzes the legal consequences of the construction of a pier (or jetty) to enable the receipt of carbon dioxide shipped from overseas. Finally, liability regimes studied go beyond maritime conventions to include contractual liability and U.S. admiralty and maritime jurisdiction. Ultimately, the report is grounded in a global perspective, including regional agreements involving developing countries, for instance, departing from the Eurocentric approach that has prevailed in the existing literature so far. This report is organized as follows. Chapter 1 introduces essential definitions and details the academic and practical interest in the cross-border shipping of carbon dioxide for permanent storage. Chapter 2 provides a technical overview of relevant issues involved in the different stages of carbon dioxide shipping. It also contextualizes CCS in the context of climate agreements. Chapter 3 zooms in the international treaties applicable to the cross-border transportation of carbon dioxide for permanent storage overseas. Chapter 4 pivots to how the international shipping of carbon dioxide from the European Union for permanent storage in the United States may fit under Nationally Determined Contributions (NDCs) and the market-based mechanisms of Article 6 of the Paris Agreement. Chapter 5 reviews the domestic legislation of the United States that may be applicable to the international shipping of carbon dioxide for permanent storage in the United States, whereas Chapter 6 presents the scope of environmental reviews that may apply under the National Environmental Policy Act (NEPA). Chapter 7 analyzes the liability regimes involved in such shipping