The Yale Law Journal’s new “Summary Judgment” online series features a set of essays on the Supreme Court’s decision in American Electric Power v. Connecticut, in which the Court held unanimously that suits against utilities alleging their emissions of greenhouse gases contribute to the “public nuisance” of global warming under federal common law were displaced by the Clean Air Act. Contributors to the online symposium include Hari Osofsky, Daniel Farber, James May, Maxine Burkett, Michael Gerrard, and yours truly. My contribution, “A Tale of Two Cases” (PDF), discusses how the outcome in AEP was predetermined by the Court’s prior holding in Massachusetts v. EPA that greenhouse gases were pollutants subject to regulation under the Clean Air Act. The essay is based on a longer article forthcoming in the Cato Supreme Court Review that I will discuss at the Cato Constitution Day event on Thursday.
Originally posted at The Volokh Conspiracy.Posts by Jonathan Adler
The New York Times tries to provide some perspective to the renewed debate over the economic effect of environmental regulation, and the effect of regulation on jobs in particular. The story was prompted by President Obama’s decision to ask Environmental Protection Agency Administrator Lisa Jackson to withdraw a proposed revision of the National Ambient Air Quality Standard for ozone. Business groups and many local government officials cheered the move; environmentalist groups were dismayed.
Part of the problem in evaluating the costs of regulation is that there have been few systematic studies of such costs after regulations are imposed.The NYT story did not provide links to Prof. Greenstone’s research, so I added them above. For those interested in the subject, a third paper by Greenstone looks at the extent to which air quality improvements can be attributed to the federal Clean Air Act. Prof. Greenstone is, among other things, the former chief economist of President Obama’s Council of Economic Advisers.“Regulations are put on the books and largely stay there unexamined,” said Michael Greenstone, an economist at the Massachusetts Institute of Technology. “This is part of the reason that these debates about regulations have a Groundhog’s Day quality to them.”
Mr. Greenstone has conducted one of the few studies that actually measure job losses related to environmental rules. In researching the amendments to the Clean Air Act that affected polluting plants from 1972 and 1987, he found that those companies lost almost 600,000 jobs compared with what would have happened without the regulations.
But Mr. Greenstone has also conducted research showing that clean air regulations have reduced infant mortality and increased housing prices, and indeed many economists argue that job losses should not be considered in isolation. They say the costs of regulations are dwarfed by the gains in lengthened lives, reduced hospitalizations and other health benefits, and by economic gains like the improvement to the real estate market.
The story closes with a quote from current Obama Administration “regulatory czar” Cass Sunstein, who’s in leave from the Harvard Law School.
“My view is that the Republican claim that ‘job-killing regulation’ is a redundancy is as ridiculous as the left-wing view that ‘job-killing regulation’ is an oxymoron,” said Cass Sunstein, head of the White House Office of Information and Regulatory Affairs. “Both are silly political claims that have no place in a serious discussion.”I agree with Professor Sunstein that the debate over whether regulation kills or creates jobs is not very productive. As a general matter, when a firm is forced to spend money complying with environmental regulations, such expenditures are likely to take the place of more productive investments. Some of these expenditures may benefit other firms, such as those which sell products or services that assist with compliance, but are still unlikely to offset the negative effects of the initial diversion. As a consequence, whether or not there are net economic benefits from environmental regulation will usually depend on the magnitude and nature of the other benefits the regulation provides — benefits that may or may not translate into job creation. Even if an environmental regulation generates net economic benefits, this does not necessarily translate into increased employment. But whatever the effect of regulation on jobs, and even assuming the effect could be predicted with any accuracy, this is only one factor to be weighed when considering the desirability of regulation.
UPDATE: Matt Kahn notes that Clean Air Act regulation is not uniform across the nation, and insofar as regulations adopted pursuant to that law have reduced employment in some parts of the country, this has been offset by greater job creation elsewhere. Indeed, this differential effect is one reason why the Clean Air Act was amended to impose greater restrictions on “cleaner” areas, as B. Peter Pashigian documented in a 1985 paper.
Grist reports on a class-action suit that is being filed against ConAgra for allegedly deceptive marketing of its various vegetable oils. The core of the complaint seems to be that some ConAgra products, such as Wesson corn oil, are labeled as “100% natural” even though they contain oil from genetically modified corn. If something comes from a GMO (genetically modified organism), they complainants allege, it cannot be “natural.” It’s an interesting argument, particularly as the federal government has not issued guidelines as to how companies may use the word “natural” in their marketing.
It’s somewhat ironic that the plaintiffs in this litigation have elected to go after corn oil, however. If the charge is that it is misleading to call something “natural” if it cannot occur naturally in nature, then no corn products would qualify, ever. This is because corn itself does not “occur naturally” in nature. Rather, it is the product of human cross-breeding and hybridization, albeit hybridization that occurred thousands of years ago. Indeed, nearly all crop varieties, so-called “GMOs” or otherwise, are human-modified strains that would not occur naturally in nature. Corn is simply a more extreme example in that it is farther removed from its natural cousins than other crops.
I don’t know whether the history of corn and other crops will affect the outcome of this suit. Even if it’s hard to argue (as a scientific matter) that “GMO corn” is less natural than “non-GMO corn,” other types of oil are also part of the suit and words like “natural” have common colloquial meanings quite apart from the scientific reality. But whatever the legal outcome, the suit illustrates how the conventional use of terms like “natural” to modern crops has little relationship to how those crops were actually developed.
Originally posted at the Volokh Conspiracy.
Yesterday afternoon I attended a lecture by Michael Greenstone, the 3M Professor of Environmental Economics and former chief economist of the Council of Economic Advisers during the first year of the Obama Administration, addressing the question, “Will Adaptation Save Us from Climate Change?” This lecture was the keynote address at a PERC workshop on “Human Adaptation to Climate Change” I’ve been attending this week.
Greenstone set the stage by observing that there are three possible approaches to the threat of climate change: 1) mitigation — reducing emissions of greenhouse gases; 2) adaptation — responding to climate change by seeking to ameliorate its negative effects, and 3) geoengineering — attempting to modify the climate in some way to offset the effects of increased greenhouse gas concentrations. The first of these is unlikely to happen in the near term, as the United States and other nations have shown themselves to be quite resistant to adopting meaningful mitigation measures. The third, whether or not it is viable or desirable, is generally not considered an acceptable approach geo-politically. As a consequence, he suggested, in all likelihood we will have to engage in some degree of adaptation to climate change.
In Greenstone’s view, the question is not whether or not human civilization will survive. It almost certainly will. Nonetheless, climate change could have substantial negative conseuqences. Rather, the relevant questions are how adaptation will occur over various time frames, the cost of such adaptation, and how effective adaptive responses will be. There is some research that has investigated the costs and potential of near-term response to some degree of climate change, but not nearly enough on longer term responses to climate change and its consequent environmental effects. Insights can be drawn, however, from other research that documents individual responses to changes in environmental conditions. For example, Greenstone co-authored a paper showing that some individuals respond to local air pollution levels by, among other things, purchasing medications that relieve some of the respiratory effects of higher pollution levels. Such adaptation may reduce the negative effects of pollution, but it still comes at a cost.
Adaptation takes many forms. Some adaptation to climate change would involve changes in infrastructure and the like, but much adaptation is likely to occur at the individual level. To take a simple example Greenstone used in his talk (based on this paper): on hotter days, people use more air conditioning. This matters because high temperatures tend to correlate with increased mortality. Therefore, were it not for air conditioning (and other means of adaptation), an increase in temperature would cause a greater increase in mortality. With air conditioning, the mortality increase is less, though energy use is greater. This illustrates how individuals can alter their behavior to compensate for some of the consequences of higher temperatures, albeit at some cost.
In poorer, less-developed nations, such as India, on the other hand, the results are somewhat different. As Greenstone explained, compared to the United States, India has less adaptive capacity, so the mortality effects of warming would be greater – far greater. There is a lot of adaptive capacity in wealthy, industrialized nations, but not so much in poorer, less-developed nations. Moreover, the United States’ adaptive capacity has improved dramatically over the course of the past century. That is, the relationship between high temperatures and increased mortality in the United States has weakened over time as the nation has become wealthier and more technologically advanced, making it easier for individuals to adapt to temperature changes.
One possible response to Greenstone’s analysis is that if wealthier nations can adapt to climatic changes more readily than poorer nations, as much attention should be paid to making poorer nations wealthier – and improving their adaptive capacity – as to figuring out how to reduce global greenhouse gas emissions so as to mitigate the threat of climate change. From an economic standpoint, the costs of mitigation could be compared to the costs of adaptation, and if the costs of mitigation are greater, this would provide an economic justification for focusing on adaptation instead of mitigation – and some would certainly endorse this view. Indeed, many in developing nations embrace this view. In any event, even if mitigation policies are eventually adopted, there will need to be some degree of adaptation, some of which will be undertaken at the individual level.
The most significant environmental case of the Supreme Court’s just-concluded term was American Electric Power v. Connecticut. As I explained in an article for PERC Reports, this case arose out of lawsuits filed by several states and environmentalist groups against five large electric power producers, alleging that their emissions of greenhouse gases contributed to the public nuisance of global warming under federal common law.
On June 20, a unanimous Supreme Court held that the plaintiffs’ suits are displaced by the federal Clean Air Act. Somewhat ironically, this holding was a consequence of the plaintiffs’ prior success bringing global warming claims to court. In Massachusetts v. EPA, some of the same states successfully argued that greenhouse gases are pollutants subject to regulation under the Clean Air Act. Yet this conclusion made displacement of the federal common law claims a done deal. As Justice Ruth Bader Ginsburg’s opinion for the Court made clear, the Court has long held that once Congress delegates regulatory authority to a federal agency, federal common law suits on the same subject matter are displaced.
We hold that the Clean Air Act and the EPA actions it authorizes displace any federal common law right to seek abatement of carbon-dioxide emissions from fossil-fuel fired power plants. Massachusetts [v. EPA] made plain that emissions of carbon dioxide qualify as air pollution subject to regulation under the Act. And we think it equally plain that the Act “speaks directly” to emissions of carbon dioxide from the defendants’ plants.That the EPA might not regulate as much as plaintiffs would like – and may not regulate enough to mitigate (let alone eliminate) the public nuisance of global warming – is immaterial. In enacting the Clean Air Act, Congress made the scope and stringency of federal greenhouse gas emissions something for the EPA to determine in the first instance, subject to judicial review.
While Justice Ginsburg’s opinion expressly left open the question of whether the Clean Air Act preempts public nuisance claims brought under state law, its displacement discussion explained why courts are particularly ill-suited to addressing climate change claims of this sort.
The appropriate amount of regulation in any particular greenhouse gas-producing sector cannot be prescribed in a vacuum: as with other questions of national or international policy, informed assessment of competing interests is required. Along with the environmental benefit potentially achievable, our Nation’s energy needs and the possibility of economic disruption must weigh in the balance. The Clean Air Act entrusts such complex balancing to EPA in the first instance, in combination with state regulators. . . .While the Court’s holding only reached plaintiffs’ federal common law claims, this discussion may give federal courts pause before approving the plaintiffs’ state-law-based claims. Grounding judicial management of climate policy in state common law does not make it any easier. If anything it would be more difficult insofar as different state-law rules could produce different outcomes. Whatever the merits of common law nuisance suits in other pollution contexts, American Electric Power v. Connecticut means federal courts will not be eager to hear such claims when based on global warming.It is altogether fitting that Congress designated an expert agency, here, EPA, as best suited to serve as primary regulator of greenhouse gas emissions. The expert agency is surely better equipped to do the job than individual district judges issuing ad hoc, case-by-case injunctions. Federal judges lack the scientific, economic, and technological resources an agency can utilize in coping with issues of this order. . . . Judges may not commission scientific studies or convene groups of experts for advice, or issue rules under notice-and-comment procedures inviting input by any interested person, or seek the counsel of regulators in the States where the defendants are located. Rather, judges are confined by a record comprising the evidence the parties present. Moreover, federal district judges, sitting as sole adjudicators, lack authority to render precedential decisions binding other judges, even members of the same court.
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Founded 30 years ago in Bozeman, Montana, PERC—the Property and Environment Research Center—is the nation’s oldest and largest institute dedicated to improving environmental quality through property rights and markets.
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