June 2005 Archives

Cass Sunstein and Bob Hahn write in the recent edition of The Economists' Voice that "the precautionary principle does not help individuals or nations make difficult choices in a non-arbitrary way. Taken seriously, it can be paralyzing, providing no direction at all." See the whole article here.

Also, a couple of other economists give the Clear Skies program a thumbs up with a few modifications.

Both of these articles are short, well-written, academic pieces that might make for nice handouts to classrooms or friends who could use a new perspective. If this is the approach that The Economists' Voice plans to follow, it will be something to watch.

Property rights advocates lost three cases in the last Supreme Court term. The problem is, in each of the three cases the Court reached the proper legal result as I explain in this NRO column. This is even true in the Kelo eminent domain case. I am no fan of eminent domain, but that does not make its use for economic development unconstitutional. The originalist case for a robust limitation on the purposes for which eminent domain is used is surprisingly weak, so the result in Kelo was probably correct. (And I know I'm going to catch hell from my libertarian friends for that one!)

Of somewhat related interest, I address the non-scandal of privately funded conferences for judges, including those sponsored by FREE, here.

A private developer is looking to take the Kelo decision after one of the Supreme Court Justices responsible for the decision. He has applied to build a hotel at the location where Justice David Souter's present home is located, noting that the hotel would increase the tax revenue available to Souter's home town of Weare, New Hampshire.

Not just as far as physical distance is concerned, I mean. European Environment Agency revealed that in 2003 EU greenhouse gases emissions grew by 53 million tonnes (1.3%). Ironically one reason was an increase in fossil fuels consumption for heating... because of a colder weather. Hey, are we sure we are talking about global warming?

Ahhh, I love cases like these: is a boat a homestead? The Fifth Circuit will let the Texas Supreme Court decide.

The Berkeley Electronic Press dedicated a recent issue to the Pollution Haven Hypothesis, i.e. do different jurisdictions try to lower their environmental standards to attract industry? There are a number of interesting papers available.

One of the more interesting papers deals with New Source Review (NSR) under the Clean Air Act, which has been in the news recently with a major D.C. Circuit opinion that upheld changes made by the Bush Administration to deal with problems involving NSR --- the exact same sort of problems addressed in this particular paper. The paper's authors explain, "In our examination of more than 2500 and 2200 plant-level modification decisions and closures, respectively, we find empirical evidence suggesting that NSR retards modification rates, while doing little to hasten the closure of existing dirty plants."

UPDATE: The authors conclude, "In sum, then, the finding that NSR deterred plant modifications that could have led to reduced emissions, in combination with the nonexistent effects of NSR on pollution-intensive plant closures, suggests the possibility that in the short run the NSR stipulation for existing manufacturing plants has led to more, rather than less, pollution." [authors' emphasis, not mine.]

Ethanol, touted as an alternative fuel of the future, may eat up far more energy during its creation than it winds up giving back, according to research by a UC Berkeley scientist that raises questions about the nation's move toward its widespread use. Story is here. Predictably, ethanol proponents have come out against the research and the researcher. This controversy has been brewing for years, but typically has been relegated to debates amongst the cognoscenti and seldom has seen the light of public discourse. There are actually a few lessons here. One is that there is wide variety among the physical facilities that produce ethanol, just as there are among all other energy facility types--some good and some not so good. Public policy should recognize that there are good performers within a type (in this case ethanol production) that should be treated separate from bad performers. Similarly, the baseline fossil fuel technologies that alternatives are invariably compared against are technologically advancing too—much cleaner and much more efficient than just a few years ago.

Last week, President Bush nominated attorney Granta Nakayma to be Assistant Administrator for Enforcement and Compliance Assurance at the Environmental Protection Agency. Now some environmentalists are crying foul because Nakayama works at a law firm that actually represented corporations. The worst allegation is that, since his firm, Kirkland & Ellis, represents W.R. Grace, and Grace has been subject to EPA enforcement, Nakayama will be unable to aggressively enforce environmental laws. But Kirkland is representing W.R. Grace in bankruptcy proceedings and Nakayama has never been involved with the case. It is disingenuous to attribute all of the work of Nakayama's entire law firm -- a firm with several hundred attorneys -- to Nakayama. Moreover, while at EPA Nakayama will be recused from matters relating to his work at Kirkland.

It seems that the only way not to be "tainted" in some folks' eyes is to never have worked in the private sector, particularly as a private attorney with paying clients. I know some greens would like to see every position at EPA filled with NRDC attorneys and lifetime government employees, but that's not going to happen in a Republican administration.

[Disclosure: I've worked for/with Kirkland & Ellis on matters with Nakayama, and he co-taught a class I took in law school.]

I have a piece up over at A Better Earth in response to recent attacks and setbacks for the Fee Demonstration program.

The U.S. Court of Appeals today largely upheld the Bush Administration's controversial revisions to the "New Source Review" regulations under the Clean Air Act. The full 73-page opinion is here. It's not a total win for the Bush Administration, to be sure, as some portions of the revisions were struck down. But it nonetheless illustrates how many of the environmentalist attacks on the Bush revisions were unfounded. Combined with the 4th Circuit's recent decision on NSR enforcement, the decision is definitely a setback for those opposing Clean Air Act reform.

UPDATE: The AP covers the decision here.

SECOND UPDATE: How Appealing has a round up of news stories on the decision here. It's interesting that some environmental groups and those states that challenged the NSR rules are claiming victory. When the Bush Administration proposed their rules, environmentalists and northeastern states charged the rules were illegal and would cause dramatic increases in air pollution. Now, in the wake of a Fourth Circuit ruling that utilities have more leeway to modify their operations than environmentalists and the Clinton EPA had claimed, the D.C. Circuit has upheld the vast bulk of the Bush Administration revisions, and Greens are pretending to be pleased as punch. They can't have it both ways. Either they were exaggerating before, or now they are spinning to cover a disastrous loss. Personally, I'm inclined toward the former. As I explained here, I never considered the EPA's revisions to be that big of a deal.

The Supreme Court held, 5-4, in the case of Kelo v. New London that local governments can use the eminent domain power to take private property for the purpose of economic development. The opinions are here.

For backgroundon the Kelo case, see here.

Judge Posner issued U.S. v. Gerke Excavating, Inc. yesterday where he argued that it doesn't matter whether waterways are navigable or not, Congress still has the power to regulate them based on the Commerce Clause. Judge Posner analogized to prior decisions that have allowed for the regulation of groundwater, because pollution might affect the groundwater, which might affect agriculture, and agriculture involves goods traded in interstate commerce.

I think it is clear that Congress has the power to regulate navigable waters as well as tributaries when the regulation deals with an activity that could substantially affect those channels of interstate commerce, but it is not clear to me that the referenced groundwater decisions or any arguments for regulating waters that aren't navigable and that would not affect navigability of interstate waters is necessarily Constitutional.

The Posner argument that pollution affects water, which affects agriculture, which involves goods traded in interstate commerce seems closer to the reasoning that was rejected in Lopez and Morrison (and embraced by Justice Breyer's dissents in those opinions) than it does to the Wickard v. Fillburn opinion, which was recently reaffirmed in Gonzales v. Raich.

Lopez and Morrison rejected the argument that it was sufficient for Constitutional purposes that guns in schools or violence to women could affect productivity which could affect goods that trade in commerce. The indirect chain of events was not sufficient to meet the Commerce Clause test. But Raich involved regulating a good that wasn't trading in commerce (home-grown, personal use, medical marijuana) yet had a perfect substitute that was trading in commerce (other marijuana). The impact of regulating (or not regulating) the first type of marijuana directly impacted the commercial regulation of the second type of marijuana. (As Justice Scalia might have put it, it was necessary and proper to regulate home-grown, personal use, medical marijuana in order to regulate marijuana in general). If Raich didn't completely knock Lopez and Morrison down to their facts, which I do not believe it did, the regulation of groundwater and non-navigable waterways that don't directly impact naviagable waterways seems like an area that could remain beyond Congressional Commerce Clause power to regulate.

With talk of 4th Circuit Judge Luttig as a possible Rehnquist replacement to the Supreme Court (see other commentary here and profile of Luttig here), this opinion published yesterday, which upholds standing for environmental groups suing under the citizen suit provision of the Clean Water Act for unpermitted ongoing discharges, won't hurt Luttig's own standing before a Senate Judiciary Committee. The pig operation that was sued argued that its good-faith efforts should protect it from suit, but the Luttig opinion noted that violations of the Clean Water Act are treated as if under a strict liability standard, and thus the good-faith efforts made no difference.

UPDATE: Incidentally, if Stevens, Ginsburg, or another of the left-leaning justices thinks that they cannot last the entirity of Bush's term, it might be wise for them to announce their own retirement within a week or two of one of the conservative justices retiring. In such a scenario, it would seem harder for President Bush to replace both retirements with more rightward-leaning justices. The pressure for a compromise could be quite great in both the media and possibly public opinion if the retirements occurred at the same time as opposed to a year apart. But such an action might make for poor manners. I don't know the history of Supreme Court retirements in sufficient detail to comment one way or the other.

The Wall Street Journal reports today on conflicts between Tasmania's beekeepers and forestry companies: In Tasmanian Forests, A Battle Breaks Out Over Bees and Trees [subscription required for link to work]. Beekeepers object to logging practices that destroy a local flowering tree vital to producing a distinctive honey. Missing from the story is discussion of who owns the land in question; most forests in Tasmania are government owned. Moving the land use decision from the political marketplace to the real marketplace by privatizing the land would surely reduce the conflicts, as entrepeneurs sought to gain the profits from managing the land to allow both beekeeping and logging. The account of how property rights enhanced conservation in a similar situation in the U.S. is described in PERC Reports.

Some of the Gristmillers are having second thoughts about the knee-jerk anti-biotechnology sentiment that permeates much of the environmental movement. See here and here. Of course, not all of their readers are as impressed.

The Huffington Post and other sites are buzzing about RFK Jr's "investigation" of a purported link between Thimerosal in vaccines and autism. Respectful Insolence's ORAC, himself a scientist and academic surgeon, is wholly unimpressed (see also here). Given RFK Jr's penchant for exaggeration, distortion, and sloppy research, I know who I'm inclined to believe.

UPDATE: Salon readers weigh in here.

SECOND UPDATE: See also this post by Skeptico, demolishing Kennedy's "completely dishonest" use of evidence, and more from ORAC here. This post on the Huffington Post is also worth a read.

THIRD UPDATE: Overlawyered notes Salon has already posted some corrections to RFK's article. That was fast. [Note, the corrections are linked at the bottom of the original article, but can also be found here and here).

FOURTH UPDATE: The President of the Institute of Medicine responds to RFK.

FIFTH UPDATE: Michael Fumento critiques RFK further on OpinionJournal.

Are Segways good or bad for the environment? That's a question New York lawmakers are addressing as they consider a bill to define the Segway as an "electric personal assistive mobility device," rather than as a motor vehicle. Some environmentalists oppose the measure. As the NYT reports:

While the Segway may appear eco-friendly at first blush - it is futuristic in aesthetic detail and a self-balancing people mover powered by batteries - clean air proponents say the bill, if signed into law, would do harm by making life harder for pedestrians.

Walkers may be forced into cars, said Peter M. Iwanowicz, of the American Lung Association. Or, those who trade walking for Segways would contribute to pollution, he said, since they would have to plug the batteries the Segway used into the wider electric grid to charge them.

GMU law prof Todd Zywicki has a thoughtful post on climate change policy on the Volokh Conspiracy. An excerpt:

the real question to ask here is whether on net, the costs of doing something about global climate change outweigh the benefits of doing it. This is the same question we ask (or should ask) about every other intervention into nature--should we kill the parasites in water so that we can drink it, should we drain a mosquito-infested swamp to eliminate the risk of malaria, should we provide a vaccine to kill naturally-occurring smallpox. To imply that if the science shows we are changing the climate we must do something about it is as wrongheaded as it would be to say that if we are not contributing to global warming we should not do anything about it.

Thirty leading British scientists have condemned The Lancet, a prestigious British medical journal, for "scare-mongering" and "desperate headline seeking," according to this report in the London Times. (Link via The Corner.)

"Under the editorship of Richard Horton, the publication of badly conducted and poorly refereed scare stories has had devastating consequences for individual and public health, in the UK and abroad, and carried a high economic cost,” read a statement signed by thirty fellows of the Royal Society, including two Nobel Laureates. In recent years The Lancet has published several controversial papers that have had to be retracted or qualified after publication, including studies purporting to show helath risks from the measles, mumps, and rubella (MMR) vaccine and GMO potatoes.

The 5th Circuit found unripe an oil and gas producers' challenge to an EPA Clean Water Act regulation requiring permits for construction activities undertaken by the industry that result in stormwater discharges. On Monday, the 7th Circuit had issued a stay pending the outcome of the 5th Circuit's opinion. For more on the 7th Circuit opinion, see here.

The 10th Circuit found on Tuesday that a Freedom of Information Act (FOIA) request by an environmental group to get electronic map files of private structures insured by the Federal Emergency Management Agency's (FEMA) National Flood Insurance Program should be denied, because the privacy interests of FOIA's exemption six outweighed the public interests in disclosure. No doubt the group wanted the information to provide criticism of a ridiculous flood insurance program that encourages landholders to build in floodplains. For a program that works rehabilitate flood plains, see here.

The 6th Circuit issued an opinion today in a mind-numbing case about proper methodologies for setting Water Effluent Technology (WET) standards under the Clean Water Act and whether the EPA was acting arbitrarily regarding state proposed rules for meeting those standards for emissions into the Great Lakes.

The Supreme Court's recent decision to end the "substantially advances a legitimate state interest" takings test in Lingle v. Chevron is already making its way into the circuits. A takings claim rested among a host of other claims brought before the 9th Circuit by a game ranch. (For the Congressional Budget Office's explanation of what a takings is, see here, and how the courts evaluate takings claims, see here.)

The ranch was affected by Montana voter initiative I-143, which passed in November of 2000. The initiative outlawed fee hunting on existing game ranches and prevented the creation of future game ranches. (Game ranches entail the raising of "alternative livestock" usually elk, deer, or exotic game on fenced-in properties. This should not be confused with ranching for wildlife where landowners improve habitat in return for tags they can sell to hunters for pursuing wild game on their property. For more on ranching for wildlife, as opposed to game ranching, see here.) The 9th Circuit refused to hear a substantially affects theory of takings in light of Lingle and left a deprivation of all economic value theory of takings (which remains valid under current Supreme Court precedent) to be decided once the state courts have decided whether a takings has occurred under Montana law.

Around the environmental horn in other cases this week:

On Monday, the 7th Circuit issued an opinion in Texas Independent Producers and Royalty Owners Association v. EPA. The interesting part of the case involved a challenge by the Natural Resources Defense Council (NRDC) to a General Permit issued by the Environmental Protection Agency (EPA) under the Clean Water Act (CWA) for dealing with stormwater dischargers resulting from construction activities.

The EPA has increasingly relied on General Permits for dealing with the permitting process required by the CWA for discharges of pollutants into waterways. Under a General Permit, the EPA sets out specific rules for specific types of activities that will qualify as being in compliance with the permit. Then, instead of applying for an individual permit as usually required to comply with the CWA, a discharger can file a notice of intent (NOI) to undertake the activity in compliance with the standards set forth by the General Permit and go on about their business without having to file for an individual permit. The process helps the EPA regulate lots more activities and industries without having to undergo the process of an individualized inquiry in each case. It also streamlines the process for industry. Many environmental groups, however, prefer a more burdensome process that makes it more costly and harder for industry to discharge at all.

In April the Economist repeated a story that is often told: how New York City preserved the quality of its water by choosing to invest in "natural capital" (wild habitat in upper-state New York) instead of building a multi-billion-dollar water filtration plant. This story got its start in the journal Nature in 1998. But Mark Sagoff blows the legend apart in "The Catskills Parable" in the June 2005 PERC Reports. New York City's water is fine, the city uses traditional means to keep it clean, and the city is not depending on wildlands to protect it.

Those interested in forestry issues may wish to check out Forest Policy-Forest Practice, a relatively new group blog devoted to forestry issues.

After years of speculation and minimal success, "tar sands" (aka "oil sands") are emerging as a viable source of petroleum, today's Washington Post reports.

Until a few years ago, such projects -- called "oil sands" or "tar sands" -- sputtered at the fringes of the oil industry. But since technological breakthroughs brought down costs and oil prices have soared, companies have been investing heavily here. Oil-sands production is now profitable when a barrel of oil sells in the low $20s, analysts said -- far below the recent $50 range.

Nuclear physicist Gerald Marsh, a science advisor at the National Center for Public Policy Research, has a letter in the UK's Financial Times responding to a June 9 FT editorial buying in to the "humans cause climate change" theory.

Marsh says, in part:

While the majority of climate scientists may believe there has been some slight warming of the globe, there is no consensus that the primary cause is due to emissions of carbon dioxide by human activity.

To claim that the status of the science has now exposed "the remaining sceptics as an extremist rearguard" is unjustified and insulting.

For those who believe that cost-effective steps to reduce carbon dioxide emissions are justified in the current climate of scientific uncertainty, there is a cheap insurance policy: vastly increase the use of nuclear power to replace coal-fired electricity generating plants...

Contrary to popular misconceptions, nuclear power is safe, environmentally benign and sustainable for many thousands of years.

John Baden of the Foundation for Research on Economics and the Environment authored this essay celebrating the 25th Anniversary of PERC -- the Property and Environment Research Center. Given the recent discussion of environmentalism's ill-health, this passage may be of interest:

Environmentalists, elected officials, and the Bush administration just haven't figured out the point behind charging fees for public land recreation. The point is incentives: If the agency is allowed to keep a share of the fees, it will have an incentive to do things that the people paying the fees care about.

For decades, the Forest Service charged fees for timber and kept the fees, but it wasn't allowed to charge or, if it could charge, to keep the fees for recreation, wildlife, or most other resources. So the Forest Service naturally became a timber-dominant agency: what was good for timber was good for its budget and therefore must be a good thing.

Congress made a tentative correction a decade ago when it allowed the Forest Service and other federal agencies to charge recreation fees and keep those fees. But some wilderness advocates and other environmentalists have protested those fees. Even as they complain about "below-cost timber sales," they promote below-cost recreation. They even convinced the Oregon legislature to unanimously pass a resolution asking that the fees be repealed.

The Bush administration responded by issuing rules that the fees could only be charged for improved sites. This will give the Forest Service an incentive to promote developed recreation and a disincentive to promote wildland recreation -- exactly the opposite of what the environmentalists say they want.

The simple reality is that, given a choice between a policy or program that will increase its revenues and one that won't, the Forest Service or any agency will usually choose the one that boosts its budget. The off-road-vehicl people figured this out years ago and they gladly pay recreation fees to get access to the public lands. Why are wilderness advocates so dumb?

Roger Pielke has co-authored a new paper on hurricanes and global warming. The paper itself is here, though it's also worth reading his comments on Prometheus. There's an excerpt below:

Pat Burns of Nature Noted, the only blog devoted to discussing land trusts, summarizes the current controversy over the activities of large trusts like The Nature Conservancy on Grist Mill. (There's even more coverage on Nature Noted itself.)

For academic takes on land trusts, in theory and practice, it's worth checking out this issue of the Natural Resources Journal, which contains a PERC-sponsored symposium on "Legal and Economic Issues in Land Conservation."

Senator Kit Bond is making progress in his effort to delay adoption of a new rule limiting emissions from lawnmowers and small-engine machines. His stated concern is that adding catalytic converters to lawnmowers could ose a fire threat, and is seeking to delay the rule until EPA conducts a study examining such concerns.

I hated seeing them on the beach as a kid. These prehistoric holdovers are quite ugly. But horseshoe crabs are important for some species of shore birds. Now, as crab populations decline -- due to over-harvesting (crab ITQs anyone?) -- bird species such as the rust-colored red knot are threatened. The Washington Post has more here.

NOAA has a new proposal to facilitate aquaculture (aka "fish farming") in federal waters. The administration supports the proposal as a way of satisfying increased demand for seafood products without increasing the pressure on wild fish populations. Some environmentalists, however, think the plan lacks adequate environmental safeguards.

The Senate Finance Committee has been taking a real hard look at the activities of non-profits, including conservation organizations. Yesterday, the Washington Post reported on the committee's just-released report on The Nature Conservancy. The statement of Comittee Chairman Senator Grassley can be found here.

In light of a recent $1.5 billion budget request, members of Congress are asking the GAO to take a look at the Washington Metro's finances, focusing on its handling of the last $1 billion it got from Congress. So, be sure to ride the Metro next time you're in Washington, D.C. If you've already helped pay for it, you might as well use it.

G. Tracy Mehan has some thoughts on whether environmentalism is dying here. He notes that environmentalism's troubles are due, in part, to its embrace of liberal politics and marginalization of conservative approaches to environmental problems. Environmentalism simply is not the political force it once was, and it is increasingly seen as a "liberal" cause -- and national environmental activist groups are increasingly seen as adjuncts to the Democratic Party. I also noted some of these trends in my 1995 book, Environmentalism at the Crossroads.

Joel Schwartz argues that it's worse on paper than in reality. The worst air quality is still in California. Among those places with the worst air off of the West Coast? Liberty, Pennsylvania.

In March I appeared on the panel "How to Protect Environmental Protections," sponsored by the Center for American Progress, American Constitution Society, and the Environmental Law Institute. A video and transcript of the event are available here. The transcript will also be published in the Environmental Law Reporter. Note, the transcript was not edited much at all (their choice, not mine), and contains a few errors.

Former Bush EPA official G. Tracy Mehan III reports on progress cleaning up the Great Lakes.

Over at A Better Earth, there is an interesting piece about an EPA raid back in 2000 of an industrial stamping plant where the EPA criminal investigation unit apparently falsified documents to bring its criminal charges.

Over at the Missoula Independent, George Ochenski rants against outsourcing at the Department of Interior.

In a new book (Water, Race and Disease, MIT Press 2004), Werner Troesken analyzes the growth of water pollution control efforts in the early 20th century and finds that public water and sewer services for African Americans grew even under Jim Crow. From the MIT Press blurb: "Arguing that in this case, racism led public officials not to deny services but to improve them -- the only way to "protect" white neighborhoods against waste from black neighborhoods was to install water and sewer systems in both -- Troesken shows that when cities and towns had working water and sewer systems, typhoid and other waterborne diseases were virtually eradicated. This contributed to the great improvements in life expectancy (both in absolute terms and relative to whites) among urban blacks between 1900 and 1940."

EH.NET has an excellent review, not yet on their site.