Energy and Environment

January 17, 2020 4:07PM

Ninth Circuit “Reluctantly” Dismisses Kids Climate Case

Today, a split panel on the U.S. Court of Appeals for the Ninth Circuit “reluctantly” dismissed Juliana v. United States, known colloquially as the “kids’ climate case.”

We should all be thankful for the court’s avowed restraint — for much of this controversy, judges in the circuit seemingly champed at the bit to take on central planning of the American economy. A big assist is due the Supreme Court, which bench‐​slapped some sense into the Ninth Circuit.

Here’s the backstory. In 2015, a group of children filed suit in a federal district court in Oregon, alleging that the federal government infringed on on their putative constitutional right to a climate unaffected by anthropogenic global warming.

On its face, the kids’ case is silly. For starters, it’s not terribly plausible to claim there’s an unenumerated constitutional right to a specific atmospheric concentration of greenhouse gases. But let’s assume there is, for the sake of argument. What could a court do about it?

As a remedy, the Juliana plaintiffs sought for the court to order the government to draw up a comprehensive climate plan – one that is subject to judicial approval and ongoing oversight.

The requested relief, therefore, is a court‐​ordered scheme to regulate the American economy. If the plaintiffs had their druthers, a single federal district court judge would become, after the president, the most powerful official in the country. Obviously, that’s a big practical problem with the plaintiff’s argument.

From a legal perspective, the Constitution vests Article III judges with the “Judicial power.” National regulatory plans, by contrast, emanate from the “legislative” or “executive” powers that are the province of the political branches of government. Simply put, judges have no constitutional authority to initiate and oversee major climate policy. 

For these reasons, judges in other circuits have been quick to nix similar challenges. Last February, for example, U.S. Eastern District of Pennsylvania Judge Paul Diamond dismissed a near‐​identical suit. According to Judge Diamond, the Constitution does not guarantee children a right to a “life‐​sustaining climate system.” After disavowing both “the authority [and] the inclination to assume control of the Executive Branch,” he concluded that climate change regulation “is a policy debate best left to the political process.”

Yet, in Juliana, U.S. Oregon District Judge Ann Aiken entertained no such reservations. Not only did she deny two of the federal government’s procedural motions to stop the case, but she initially refused to certify her orders for interlocutory appeal — that is, she refused to allow the government to appeal her procedural orders before the case went to trial. It seemed as if she wanted to try Juliana.

The Ninth Circuit, too, seemed eager for the case to proceed. Twice, the court denied government petitions to end the case.

If all these judges in the Ninth Circuit were so eager to take the case, then how did Juliana get dismissed today?

The answer involves unmistakable signals sent from the Supreme Court. At various points during the litigation, the federal government asked the Court to pause the case. In denying these motions as untimely, the Court included language that unequivocally imparted its concern regarding the constitutional viability of the claims at issue in Juliana.

For example, in July of 2018, the Court observed that “The breadth of respondents’ claims is striking,” and further directed District Court Judge Aiken to “take [justiciability] concerns into account.” A few months later, the Supreme Court basically ordered the Ninth Circuit to hear the federal government’s appeal (on justiciability grounds).

After the Supreme Court’s second order, the Ninth Circuit leaned on Judge Aiken to certify her procedural orders and thereby permit the government’s appeal. Last June, the Ninth Circuit held oral arguments. Today, it “reluctantly” dismissed the case, holding:

We reluctantly conclude … that the plaintiffs’ case must be made to the political branches or to the electorate at large, the latter of which can change the composition of the political branches through the ballot box. That the other branches may have abdicated their responsibility to remediate the problem does not confer on Article III courts, no matter how well‐​intentioned, the ability to step into their shoes.

It bears noting that a majority on the three‐​judge panel dismissed Juliana over the impassioned (though wrong) dissent of Judge Josephine L. Staton. So a third of the panel would have allowed the case to proceed, while the rest ended Juliana only with “reluctance.” It may not be pretty, but I welcome the outcome nevertheless.

January 13, 2020 2:38PM

It’s the Knick of Time for States to Revisit Overbearing Land Use Regulations

It’s January, so most state legislatures are kicking off their sessions. Across state capitols, one issue to monitor is the fallout from the Supreme Court’s 2019 landmark decision in Knick v. Township of Scott, a holding which may compel many local governments to rethink how they regulate private property.

Professor Ilya Somin coauthored an amicus brief to the Knick Court on behalf of the Cato Institute and other organizations, and he summarized the controversy as follows:

The main point at issue in Knick is whether the Court should overrule or limit Williamson County Regional Planning Commission v. Hamilton Bank, a 1985 decision that makes it virtually impossible to bring many types of takings cases in federal court. Under Williamson County, a property owner who contends that the government has taken his property and therefore owes “just compensation” under the Fifth Amendment, cannot file a case in federal court until he or she has first secured a “final decision” from the relevant state regulatory agency and has “exhausted” all possible remedies in state court. At that point, it is still often impossible to bring a federal claim, because various procedural rules preclude federal courts from reviewing state court decisions in cases where the case was initially brought in state court.

Property owners prevailed last Summer, as explained by my colleague Ilya Shapiro:

[Today] the Supreme Court in Knick v. Township of Scott ruled 5 – 4 that a government violates the Fifth Amendment’s Takings Clause when it takes property without compensation, and a property owner may bring a claim to that effect in federal court at any time … Knick represents the culmination of many years of challenges to Williamson County, and years of effort to put property rights (and takings claims specifically) on the same procedural footing as other rights enumerated in the Bill of Rights.

No longer will courts relegate the Takings Clause to “second‐​class status” among our rights. Of course, the Knick holding is only the start. Now, states must deal with the constitutional consequences.

As Justice Elena Kagan noted in her dissenting opinion, “There are a nearly infinite variety of ways for regulations to affect property interests.” One such “way” — increasingly popular of late — involves local laws that obstruct mineral extraction on private property. Obviously, these measures would result in property owners losing some or all of the value of their subsurface mineral rights.

After Knick, affected property owners are much more likely to get their day in federal court to seek just compensation from the government. This access to courts, in turn, changes the dynamic between local governments and regulated entities. Most localities have insufficient resources to either litigate these challenges or provide just compensation (if they lost in court). The upshot is that Knick gives local governments a strong incentive to revisit recently passed roadblocks to oil and gas production.

Which brings us to Colorado, among the biggest beneficiaries of the recent revolution in American oil and gas production ushered in by technological breakthroughs in directional drilling and hydraulic fracturing. At present, the industry annually creates more than $30 billion in wealth for the state.

A mere months before the Supreme Court’s decision in Knick, Colorado Governor Jared Polis signed SB19-181, a massive overhaul to the state’s oil and gas regulatory regime. Among other measures, the law provides local governments with increased authority to limit subsurface property rights.

In Knick’s wake, some Colorado officials are asking hard questions about SB19-181. One of them is Sen. Kevin Lundberg. Almost a decade ago, I worked with Sen. Lundberg on the state’s implementation of the Clean Air Act, and I know he’s a serious lawmaker.

Last month, Lundberg led the Republican Study Committee of Colorado in a series of hearings on how SB19-181 will function in a post‐Knick world. His findings are sobering: Potentially, “thousands of Colorado citizens who are mineral interest owners can have their day in Federal court” and seek “literally trillions of dollars.”

In his writeup of the hearings, Sen. Lundberg correctly observed that “Something has to give … If [state] policy makers are smart, they will unwind SB19-181 before it becomes a crisis for the entire state.”

During the new legislative session, Sen. Lundberg promised more hearings on the matter. Coloradans should hope his colleagues give this matter the attention it deserves. Even if the state lawmakers don’t act, I suspect that municipal and county governments in Colorado will think twice before they exercise their SB19-181 authority to constrain property rights.

January 7, 2020 4:08PM

Crescent Dunes: Another Green Flop

The Department of Energy called the vast and expensive solar project a “success story” and “milestone for the country’s energy future.”

But you can’t trust what the government says. Crescent Dunes is a flop and taxpayers are set to lose $737 million on it, according to a new Bloomberg report. That is even more than the $535 million taxpayers lost on the corruption‐​soaked Solyndra solar project.

With 10,000 mirrors arrayed in the Nevada desert, Crescent Dunes does look cool. But with the much lower costs of solar photovoltaic and natural gas projects, the government’s gamble on this alternative technology was folly. Politicians never apologize for their mistakes, and the main politician responsible for this one, former Senator Harry Reid, has retired and won’t face any tough questions about wasting our money.

Crescent Dunes was apparently undermined by mismanagement, unreliability, and excessive costs. The various players are now pointing fingers of blame at each other, which is typical of government‐​funded projects because they tend to diffuse responsibility.

Another solar‐​array boondoggle is the Ivanpah project in California, which received $1.6 billion in federal money. It generates less energy than was promised and at very high costs. I discuss other failed federal energy projects in this essay.

The lesson is that political daydreams about green new deals ultimately need to confront reality. And the reality is that the government’s track record at guiding our energy future has been pretty dismal.

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October 1, 2019 4:20PM

Greenhouse Gas Emissions and the California Waiver

Since the 2016 election, the Trump administration has intended to freeze or repeal vehicle fuel economy and emissions standards. Last summer, the administration announced a plan to freeze Corporate Average Fuel Economy (CAFE) standards and to revoke a waiver that allows California to set its own vehicle emissions standards. While there has apparently not been much headway in the efforts to freeze CAFE standards, President Trump recently tweeted his intention to officially revoke the California waiver.

As I discussed in a blog last year, CAFE standards are a costly and imperfect remedy to limit vehicle emissions. They were originally enacted to address an entirely different problem: the oil shocks of the 1970s and soaring oil prices. The rules have since been repurposed to address greenhouse gas emissions, but they are an inefficient and clumsy tool.

But while the flaws of CAFE standards are straightforward, the costs and benefits of the California waiver are more ambiguous. The waiver, which was originally granted because of unique weather and geographic conditions around Los Angeles that make it particularly susceptible to smog, has also been repurposed to address vehicle greenhouse gas emissions. California is allowed to set vehicle emissions standards that are stricter than the federal government, and states are able to pick whether they follow the federal standards or California’s.

I argued in my blog last summer that, while CAFE standards should be repealed, the California waiver does serve a purpose, though its use as a tool to combat greenhouse gas emissions is ineffective:

Regulation of pollutants that affect local air quality should be decentralized because both the costs and benefits are local. But reduction of CO2 emissions is a global public good. Any benefits accrue to the world’s climate even though the costs are local. This mismatch between the geographic incidence of costs and benefits imply that a waiver that exempts one state makes no sense in the context of CO2 emissions and has the potential to unduly increase compliance costs for automakers.

In a recent blog post, James Sallee, an economist at UC Berkeley and the Energy Institute at Haas, makes the point that not only are the benefits of California’s higher vehicle emissions standards diffuse while costs are concentrated on Californians, but the benefits themselves are undermined by the fact that the state’s higher standards allow car companies to sell less efficient cars elsewhere. Sallee argues,

The federal greenhouse gas rule for automobiles, called Corporate Average Fuel Economy (CAFE) standards, require automakers to sell vehicles that, on average, have fuel economy above a certain threshold. If California has its own, stricter greenhouse gas rule, the cars sold in California still count as part of the federal fleet under CAFE. This means that every Leaf, Prius and Tesla sold in California improves the industry’s federal average. That enables automakers to sell more Mustangs and Suburbans in the rest of the country, which means that much, if not all, of the greenhouse gas mitigation that takes place in California will be offset by increased emissions throughout the nation.

The application of this so called “waterbed effect” to California fuel economy standards was described elegantly in a paper by Larry Goulder, Mark Jacobsen and Arthur van Benthem back in 2012. They studied the implementation of a California‐​specific fuel economy rule and concluded that between two‐​thirds and three‐​quarters of emissions reductions in California would be offset by increases in other states. In the meantime, the burden of complying with strong regulations would fall on Golden State consumers.

Sallee’s point reinforces the argument that the California waiver has, just like CAFE standards, been ineffectively repurposed as a tool to limit greenhouse gas emissions. But despite its flaws, California and 22 other states filed a lawsuit challenging the Trump administration’s revocation of the waiver. Perhaps they’d be less willing to fight for the waiver if they realized their higher emissions standards burden Californians with increased costs but only provide minimal benefits.

Written with research assistance from David Kemp.

July 16, 2019 8:00AM

Saving Cities from Bad Federal Policies

Since 1992, federal taxpayers have helped fund construction of urban rail transit lines through a program called New Starts. This program is due to expire in 2020, and today the Highways and Transit Subcommittee of the House Transportation and Infrastructure Committee will hold a hearing on whether or not to renew it.

No doubt most of the witnesses at the hearing will be transit agency officials bragging about how their expensive projects have created jobs and generated economic development. But a close look at the projects built with this fund reveals that New Starts has done more damage to American cities than any other federal program since the urban renewal projects of the 1950s. Here are eight reasons why Congress should not renew the program.

1. New Starts encourages cities to waste money. The more expensive the project, the more money New Starts provides, so transit agencies plan increasingly expensive projects to get "their share" of the money. As a result, average light-rail construction costs have exploded from under $17 million per mile (in today’s dollars) in 1981 to more than $220 million a mile today.

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July 2, 2019 10:19AM

LA Metro’s Climate Strategy

An article in the Los Angeles Times last week frets that Los Angeles transit buses are “hemorrhaging riders,” which is supposedly “worsening traffic and hurting climate goals.” In fact, the decline of bus transit is actually helping California achieve its climate goals.


In 2017, Los Angeles Metro buses used 4,223 BTUs and emitted 349 grams of greenhouse gases per passenger mile. By comparison, the average light truck used only 3,900 BTUs and the average car just 2,900, with light trucks emitting 253 grams and cars 209 grams per passenger mile. By raising bus fares and reducing bus service, L.A. Metro is getting people out of dirty buses and into clean cars.


Of course, L.A. Metro officials probably don’t realize they are doing that. They are so bone‐​headed that they want to convert a dedicated bus route into a light‐​rail line in order to “increase its capacity.” At present, they run a maximum of 15 buses an hour on the dedicated bus lanes, which is less than 6 percent of its capacity.


Dedicated bus lines in other parts of the world move as many as 30,000 people per hour in each direction. By comparison, no light‐​rail line can move more than about 12,000 people per hour. As one study concluded, “there are currently no cases in the US where LRT [light rail transit] should be favored over BRT [bus‐​rapid transit].”


Los Angeles Metro’s CEO is currently paid well over $300,000 a year, which is almost twice as much as the governor of California and far more than the director of the state Department of Transportation, whose agency moves far more people and ton‐​miles of freight per day than Metro moves in a month. Yet Metro’s CEO is not being paid to move people, but to separate people from their tax dollars, and so far he is doing that very well. 


For more information about the future of public transit, see my recent article about LA Metro’s climate strategy.

June 10, 2019 9:17AM

EPA Co‐​benefits Are Fine, But the Agency Must Tell the Whole Story

Should you be worried about mercury emitted from power plants?

Sure, but only if you are a pregnant woman, who during gestation consumes about 220 pounds of fish caught from exclusively the top ten percent most polluted fresh waters of the United States, despite all the signs along these rivers and lakes warning “DO NOT EAT THE FISH!

Don’t take my word for it. I’m simply relaying EPA science. And not the ‘bad” kind produced by the Trump administration; rather, I’m talking about virtuous EPA science as practiced by the Obama administration.

A little background: mercury emissions aren’t a direct threat to humans, but instead settle onto water bodies, and then make their way up the aquatic food chain. Because mercury is a neurotoxin, the fear is that pregnant women can engender developmental disorders in their offspring by eating fish that have bio-accumulated the toxin.

In the course of promulgating the Obama-era Mercury and Air Toxics Standards for power plants, the EPA stated that it considers “IQ loss estimates of 1-2 points as being clearly of public health significance,” even though this low a number rests comfortably within the error of measurement inherent to an IQ test. According to the EPA’s analysis, the Mercury Rule was necessary to prevent an IQ loss of 1.1 points supposedly suffered by children born to a putative population of pregnant women from substance families, who during their pregnancies eat 220 pounds of self-caught fish reeled in from the most polluted bodies of fresh water. Notably, the EPA failed to identify a single member of this supposed population. Instead, these women were modeled to exist.

Even under EPA’s ultra-accommodating analysis of its rules’ benefits, the agency pegged the benefits of the Mercury Rule at a mere $6 million. In stark contrast, the agency estimated that the rule would cost about $10 billion annually, making it one of the most expensive regulations ever.

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