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Recent Projects

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  • Academic Articles/Working Papers

    Environmental Standards, Thresholds, and the Next Battleground of Climate Change Regulations

    February 15, 2019

    This article addresses a central battleground of the debate about the future of greenhouse gas regulations: the valuation of particulate matter reductions that accompany reductions in carbon dioxide emissions. The benefits from particulate matter reductions are substantial for climate change rules, accounting for almost one half of the quantified benefits of the Obama Administration’s Clean Power Plan. These benefits are also significant for regulations of other air pollutants, making this issue one of far-reaching importance for the future of environmental protection.

    Opponents of environmental regulation, including the Trump Administration, have recently embraced an aggressive line of attack on particulate matter benefits. They argue alternatively that these benefits are not real; are being “double counted” in other regulations; or should not be considered when they are the co-benefits, rather than the direct benefits, of specific regulations. This article collects and analyzes for the first time the robust support for valuing particulate matter benefits. An examination of the scientific literature, longstanding agency practices under administrations of both major political parties, and judicial precedent reveals that particulate matter benefits deserve a meaningful role in regulatory cost-benefit analysis.

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  • Academic Articles/Working Papers

    Will You Be There for Me the Whole Time?

    February 7, 2019

    This paper discusses how variations in the availability of various resources (generation seasonality) and the fluctuations in the electricity usage (load seasonality) relate to efficient capacity market design. Even though capacity markets have been around for two decades, the necessity as well as the design of these markets are subjects of ongoing debates. Many design questions, such as how to determine the amount of capacity to be procured, how to prevent market power, or how to provide incentives for performance dominate both the academic literature and the policymaking discussions. Another design aspect that plays a crucial role for market participants is the length of the capacity product procured (“obligation period”), because it defines the length of time for which a seller commits to maintaining its capacity available. However, a thorough analysis of obligation periods has been overlooked by literature and policymaking discussions. Our article works to provide this analysis.

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  • Issue Briefs

    A Lower Bound

    January 31, 2019

    The Social Cost of Carbon, developed by the Obama-era Interagency Working Group (IWG), is the best available tool for measuring the economic damages from greenhouse gas emissions. It has been used in analysis for over 100 federal regulations that affect greenhouse gas emissions, as well as by a number of states in electricity and climate policy. Still, many significant impacts identified by the Intergovernmental Panel on Climate Change are difficult to quantify and so have been omitted from the IWG SCC estimates. Impacts such as increased fire risk, slower economic growth, and large-scale migration are all unaccounted for, despite their potential to cause large economic losses. Our new issue brief discusses these omissions and other variables that will influence climate outcomes. We encourage policymakers to account for this likely underestimate by viewing the SCC as a lower bound for damages.

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  • Academic Articles/Working Papers

    Environmental Federalism in a Dark Time

    December 20, 2018

    The principle of federalism has become something of a rallying cry in recent efforts by the Trump Administration and its allies to scale back environmental regulation. For example, during his short and troubled tenure, former EPA Administrator Scott Pruitt argued that the federal government has become too intrusive and that states should be returned to a position of “regulatory primacy” on environmental matters. Some states have responded to the impeding federal retreat by forging ahead. For example, California has continued to take aggressive steps to curb greenhouse gas emissions, and has even taken steps to project its influence internationally. However, despite these hopeful signs of resistance, the net effect of the Trump Administration’s efforts to scale back federal environmental policy is likely to undermine rather than energize state environmental policymaking, especially in Republican-dominated and swing states, where the climate policy vacuum is most acute.

    This article, published in the Ohio State Law Journal, explains why, in cases where collective action is needed, the national government remains indispensable. Some states, especially Blue states, continue to forge ahead on
    climate and clean energy policy in the face of regulatory rollbacks at the federal level. But these efforts face headwinds in the form of resistance from the federal government. Even worse, development on these policies has slowed or stopped in many Red and Purple states under the Trump Administration. This represents a lost opportunity to develop valuable political information about how to productively approach climate policy in more conservative areas.

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  • Academic Articles/Working Papers

    Regulation and Distribution

    December 17, 2018

    This article, published in the New York University Law Review, tackles a question that has vexed the administrative state for the last half century: how to seriously take account of the distributional consequences of regulation. Academic literature has largely accepted the view that distributional concerns should be moved out of the regulatory domain and into Congress’s tax policy portfolio. In doing so, it has overlooked the fact that tax policy is ill suited to provide compensation for significant environmental, health, and safety harms. And the congressional gridlock that has bedeviled us for several decades makes this enterprise even more of a nonstarter. The time has come to make distributional consequences a core concern of the regulatory state – otherwise, future socially beneficial regulations could well encounter significant roadblocks. This article provides the blueprint for the establishment of a standing, broadly constituted interagency body charged with addressing serious negative consequences of regulatory measures on particular groups.

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  • Reports

    Deregulation Run Amok

    November 13, 2018

    For the first year and a half of the Trump administration, deregulatory efforts focused on suspending regulations across many agencies. But those suspensions flouted public input requirements, ignored statutory mandates, and failed to fully and honestly address the impact of the delays on the valuable benefits conferred by the original regulations. As a result, many have been struck down in court.

    Our report provides a survey of the legality of the Trump administration’s regulatory suspensions. Looking at a number of cases, we discuss the administration’s disregard for notice-and-comment requirements, statutory restrictions, and the reasoned explanation requirement. We also lay out some of the challenges facing advocates, and the strategies by which agencies have evaded review. It is worth reflecting on the era of suspensions as the administration moves into repealing rules. The legal principles that applied to suspensions will also apply to repeals, and the same flaws are already appearing in many of the proposals to repeal regulations.

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  • Reports

    No Turning Back

    October 26, 2018

    For 50 years, California has enjoyed unique authority to regulate air pollution from newly manufactured motor vehicles. While the Clean Air Act preempts all other states from setting their own vehicle emission standards, California can request a waiver to do so if it determines that its standards are at least as protective of public health and welfare as federal standards issued by the U.S. Environmental Protection Agency (“EPA”). Once a waiver is granted, other states can adopt California’s more stringent vehicle emissions standards as their own.

    Since the waiver provision was enacted in 1967, EPA has granted more than 50 waivers for California, fully denied only one (a decision it subsequently reversed), and revoked zero. EPA has now proposed to withdraw the waiver California received in 2013 to set its own greenhouse gas emission standards, in conjunction with a weakening of federal greenhouse gas emission standards for vehicles in model years 2021 through 2026.

    Because a waiver withdrawal would be entirely unprecedented, neither courts nor legal scholars have previously had cause to discuss the circumstances, if any, under which a waiver might permissibly be withdrawn. This report analyzes whether EPA possesses revocation authority and, assuming it exists at all, when and how such authority may be exercised. It is an update to the August 2018 version of the same report.

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  • Academic Articles/Working Papers

    Congress and the Executive

    August 15, 2018

    Critics of the administrative state have been urging Congress to rein in regulatory action, claiming that regulations created by executive agencies are undesirable as a matter of policy and are in violation of constitutional principles. In a troubling development, the Trump Administration has also turned away from cost-benefit analysis in order to carry out its anti-regulatory agenda, disregarding an established bipartisan consensus that stretched back several decades.

    This article, published in the Michigan State Law Review, argues that this anti-regulatory position is unwarranted. These executive regulatory actions produced large net benefits to the American people, were carried out pursuant to authority delegated by Congress, and were reviewed by the courts. By contrast, more robust action by Congress, as long as Congress continues to exhibit its current gridlock on important policy issues like climate change, is unlikely to be beneficial.

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  • Academic Articles/Working Papers

    The Future of Distributed Generation

    August 8, 2018

    As distributed energy generation is becoming increasingly common, the debate on how a utility’s customers should be compensated for the excess energy they sell back to the grid is intensifying. And net metering, the practice of compensating for such energy at the retail rate for electricity, is becoming the subject of intense political disagreement. Utilities argue that net metering fails to compensate them for grid construction and distribution costs and that it gives rise to regressive cost shifting among its customers. Conversely, solar energy proponents argue that the compensation should be higher than the retail rate to account for other benefits that distributed generation systems provide, such as the resulting climate change and other environmental benefits, as well as the savings resulting from not needing to build new installations to provide additional capacity. This ongoing debate is leading to significant changes to net metering policies in many states.

    This article provides an overview of the benefits and the costs of distributed generation and highlights the analytical flaws and missing elements in the competing positions and in most existing policies. We propose an alternative approach that recognizes the contributions to the electric grid of both utilities and distributed generators. The article is excerpted and revised from a longer academic article, Managing the Future of the Electricity Grid: Distributed Generation and Net Metering, which was selected by Environmental Law Reporter as one of the five best environmental law articles published in the 2016-2017 academic year.

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  • Reports

    Toward Resilience

    August 1, 2018

    Grid resilience—generally, the electric grid’s ability to resist/absorb, manage, quickly respond, and recover from/adapt to high-impact, low-probability external shocks—has been a concern for electric utilities and energy planners for decades. While recent extreme weather and cyber security concerns have prompted the federal government to pursue policies that support coal and nuclear power plants, a more systematic focus on resilience will lead to very different solutions than what has been proposed by the Department of Energy.

    Our report aims to assist policymakers in understanding grid resilience and evaluating potential interventions aimed at improving grid resilience. It develops a definition of resilience grounded in academic literature; describes a methodology for calculating the costs and benefits of potential grid resilience improvements; identifies legal authorities that states and federal agencies can use to implement resilience-enhancing policies and investments; and analyzes the Trump Administration’s proposals to support coal and nuclear plants in light of the insights developed in the report.

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