Unfounded Fears About Pollution Trading and Hotspots

EPA emissions inventory and cancer risk data for criteria pollutants and air toxics show clearly that vehicles and small stationary sources emit a majority of the air pollution nationally and account for most of the cancer risks from air toxics. Industrial sources, by contrast, rarely account for more than 10% of cumulative cancer risks from all outdoor sources of air toxics. The observed pattern of emissions is replicated at spatial scales ranging from census tracts to the nation as a whole. The secondary status of industrial facilities as sources of air pollution largely neutralizes the potential for pollution trading programs to cause hotspots. In the vast majority of jurisdictions, industrial emissions are simply too low, and in the few jurisdictions in which disparities cannot be ruled out, targeted policies exist to prevent them without compromising market efficiency. These findings are generalizable to all market-based regulations.The Kay Bailey Hutchison Center for Energy, Law, and Busines

The Limits of Liability in Promoting Safe Geologic Sequestration of CO2

Deployment of new technologies is vital to climate change policy, but it invariably poses difficult tradeoffs. Carbon capture and storage (“CCS”), which involves the capture and permanent burial of CO2 emissions, exemplifies this problem. This article provides an overview of CCS in Part I, focusing on geologic sequestration, and analyzes the scientific work on the potential for releases of CO2 and brine from sequestrian reservoirs. Part II evaluates the comparative advantages of government regulation and common law liability. Part III examines the relative efficiencies of different doctrines of common law liability when applied to likely releases from sequestrian sites. The authors propose a hybrid legal framework in Part IV that combines a traditional regulatory regime with a novel two-tiered system of liability that is calibrated to objective site characteristics.The Kay Bailey Hutchison Center for Energy, Law, and Busines

A Cautiously Pessimistic Appraisal of Trends in Toxics Regulation

This Article will draw on the one-hundred year history of drug regulation, which represents the most stringent regulatory system for chemicals of any kind. An examination of this broader experience exposes several commonalities and tradeoffs inherent in chemical regulation. It also offers a comparative perspective on the strategies used in the regulation of chemicals that suggests an upper limit for the stringency of regulation that is politically and scientifically viable. Two important insights emerge from this comparative analysis: (1) the ex ante-ex post dichotomy that is often drawn between common law and statutory law is overstated—if not simply false—for chemical regulation, and (2) for most chemicals tiered precautionary systems like those embodied in the Registration, Evaluation, and Authorization of Chemicals program ( REACH ) represent more of a change in rhetoric than a fundamental shift in substance over the status quo. Complementing the comparative historical analysis, this Article will provide an overview of recent scientific developments and their implications for toxics regulation. I expect the direct impacts to be marginal, at least for the foreseeable future. More importantly, given the limited resources available to toxics programs and the steep opportunity costs that these financial constraints impose, I will advocate that the Environmental Protection Agency ( EPA ) and National Institute for Environmental Health Sciences ( NIEHS ) invest modestly in toxicogenomic research. The emerging complexity of human genetics suggests that it would be prudent to allow research to progress in the biomedical sciences before focusing more intensely on toxicogenomics. The final part of the Article examines promising opportunities to improve the regulation of toxic substances, which is the subject of renewed interest in Congress and rising support from a broad cross-section of stakeholders. It will evaluate three primary policies: the virtues of tiered regulatory regimes, the potential role of post-marketing testing, and the value of complementary innovation-oriented policies to promote development of green chemistry processes and compounds. Each will be discussed with an eye toward emerging legislative efforts to amend TSCA

Environmental Federalism when Numbers Matter More than Size

Two elements of the Clean Air Act are viewed as essential to its many successes: the health-based national ambient air quality standards (NAAQS), which restrict emissions of six widely released air pollutants, and the statute’s hybrid form of cooperative federal-state regulation. This Article will show that these programs are far less important to the operation of the statute than conventional wisdom would have you believe. An amalgam of parallel programs and external constraints, both political and practical, have marginalized the NAAQS framework and limited state action, such that in practice the law is more federal than it is cooperative.The Kay Bailey Hutchison Center for Energy, Law, and Busines

Cost-Benefit Politics in U.S. Energy Policy

The political economy of energy policy in the United States is dominated by partisanship and industry lobbying. Both are reflected in the widespread belief that the Environmental Protection Agency (EPA) is engaged in a misguided “war on coal”—despite decades of regulatory delays, the coal industry’s status as the leading industrial source of air pollution, and compelling evidence that the benefits of EPA’s regulations vastly exceed their costs. The politics are compounded by tensions between electricity managers and environmental regulators. Much of this is driven by competing perspectives: EPA tends to have a national focus, whereas grid managers operate regionally. This Article resolves the apparent conflicts by downscaling the regulatory analyses of three high-profile EPA rules that cover conventional pollutants, air toxics, and greenhouse gases associated with climate change. We utilize complementary EPA databases and draw on several model estimates to examine the regional impacts, both costs and benefits, of regulations targeting coal-fired power plants. Overall we find little evidence of significant regional disparities, as the distribution of compliance costs and benefits is roughly commensurate with each regions’ reliance on coal-fired power, and particularly older facilities. This result follows naturally from the benefits of reducing emissions under these rules being predominantly local; as a consequence, regulatory benefits exceed costs at the regional level and typically by large margins. Further, with a few important caveats, we find that while the EPA rules will encourage many power-plant closures, most will occur in electricity markets that have sufficient excess capacity to mitigate potential threats to electricity supplies and reliability. We conclude that while interest group opposition and political partisanship are clearly both important in this context, the latter appears to hold greater sway based on varying levels of political opposition regionally and may—incrementally—be shifting in EPA’s favor.The Kay Bailey Hutchison Center for Energy, Law, and Busines

Trademarks and Private Environmental Governance

This Article examines the relationship between private environmental governance and trademark law. Over the past two decades, green trademarks and other forms of private governance have flourished in tandem with the retreat from national and international public law modalities of environmental regulation. The rising political opposition to environmental regulation partly accounts for this change. Also relevant is the rise of globalization, which due to jurisdictional and trade constraints has diminished the effective regulatory control countries have over products sold in their markets. Private environmental governance is premised on consumers “voting with their wallets” by selecting products that reflect not just their instrumental preferences, but also their values. The potential of this form of private governance has not been realized, however, in part because consumers are often overwhelmed by information from multiple green trademarks with different standards or criteria. The resulting congestion of market information has undermined the communicative function of green trademarks that is essential to enabling consumers to make environmentally responsible choices. For a variety of reasons, trademark law is premised on a narrowly prescribed role for trademarks that is poorly adapted to facilitating information-based forms of private governance. Instead, intramural battles over the scope of trademark rights—ignited by overreaching corporate branding strategies—have elevated a reactionary turn in trademark theory that reduces trademarks solely to identifying the specific source of a product or service. We argue that the normative ends of private environmental governance should factor into, though by no means determine, trademark policy

Reevaluating Environmental Citizen Suits in Theory and Practice

Citizen suits are frequently cited as an essential legal innovation by virtue of their capacity to provide a backstop to lax or ideologically antagonistic administrations. Drawing on data from fifteen years of litigation under two prominent environmental statutes, we find little evidence that citizen suits effectively serve this role in practice. Instead, we find that limited resources and institutional barriers strictly limit the number of citizen suits filed annually against the federal government under two of the most litigated environmental statutes, the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA). While our findings do not negate the importance of citizen suits, they expose their limitations and the close alignment that exists between where suits are filed and local politics. Citizen suits mirror local values as they are overwhelmingly filed in jurisdictions in which concerns about the environment are the highest, and they are rare where public concern is lowest. Our empirical findings lead us to reject the conventional model for citizen suits in favor of three alternative models that range from discrete, localized action to continuous lines of litigation over high-profile natural resources that can span decades. We find that the citizen suits under NEPA and the ESA that are covered by our study rarely target state or federal programs that are lax by national standards; instead, they serve a range of goals, large and small, that differ depending on the form of the suit (private enforcement actions, suits to perform nondiscretionary duties, or challenges to legally deficient agency action) and the programs and resources affected. Specifically, we find that citizen suits provide important constraints on agency discretion when environmental statutory mandates and the ideological outlook of presidential administrations diverge. Our findings also negate prominent critiques of citizen suits, most notably claims that citizen suits usurp government authority without the safeguard of political accountability and therefore are in need of vigorous gatekeeping by either executive branch officials or federal judge