Publications

Federal agencies’ cost-benefit analyses do not capture nonhuman animals’ interests. This omission matters. Cost-benefit analysis drives many regulatory decisions that substantially affect many billions of animals. That omission creates a regulatory blind spot that is untenable as a matter of morality and of policy. Valuing animals could have mattered for many cost-benefit analyses, including those for pet-food safety regulations and a rear backup camera mandate. As a sort of “proof of concept,” this Article shows that even a simple breakeven analysis from affected animals’ perspective paints even the thoroughly investigated policy decision at issue in Entergy Corp. v. Riverkeeper, Inc. in an informative new light.

Governments are catching up with economic theory and practice by increasingly integrating ecosystem service values into national planning processes, including benefit-cost analyses of public policies. Such analyses require information not only about today’s benefits from ecosystem services but also on how benefits change over time. We address a key limitation of existing policy guidance, which assumes that benefits from ecosystem services remain unchanged. We provide a practical rule that is grounded in economic theory and evidence-based as a guideline for how benefits change over time: They rise as societies get richer and even more so when ecosystem services are declining. Our proposal will correct a substantial downward bias in currently used estimates of future ecosystem service values.

In June 2022, the Supreme Court handed down its landmark decision in West Virginia v. Environmental Protection Agency (EPA), which marked the first time the Court named and expressly relied on the major questions doctrine. This Article surveys how lower federal courts have interpreted West Virginia and applied the major questions doctrine. There is no one major questions doctrine in the lower courts. Judges have taken vastly different approaches to defining and applying the doctrine both within and across circuits. These differences illustrate that many judges may view the doctrine as a little more than a grab bag of factors, which they seem to be choosing from at their discretion. Lower court judges do not appear to be constrained in how they apply the doctrine. In a majority of cases concerning Biden Administration agency actions and executive orders, judges applied the doctrine to reach outcomes that aligned with the political party of their appointing President.

Natural gas plays an outsized role in the U.S. economy. Under the Natural Gas Act, the Federal Energy Regulatory Commission (FERC or the Commission) is responsible for overseeing the orderly development of interstate natural gas pipelines, which facilitate the transmission of natural gas throughout the country. FERC can approve the pipeline only if it finds that it is required by the “public convenience and necessity.” Although FERC should consider a range of factors to determine whether a pipeline will serve the public interest, in practice, it looks primarily to the contracts between a developer and its customers for the purchase of pipeline capacity. If a developer can demonstrate that there is a party willing to pay to use its pipeline, FERC rarely asks questions and almost always finds “public” need. This pipeline-by-pipeline approach to natural gas transmission build-out leads to the construction of unnecessary, underused pipelines, which in turn increases ratepayer costs and decreases consumer welfare. Climate change further increases the risk that pipelines will become obsolete as cities and states move toward electrification. Relying on economic theory, legal history, and policy analysis, we make the case in this paper—pulished in the Columbia Journal of Environmental Law— for FERC’s adoption of regional gas transmission planning. 

What's the function of oil and gas permitting agencies? Despite broad statutory grants to federal agencies, oil and gas companies increasingly argue that the role of those agencies is to promote development regardless of whether it is socially desirable. But this “Narrow Reinterpretation,” in addition to lacking textual support, is at odds with longstanding practice. What changed? Not the governing statutes, at least not in pertinent part. But the energy sector has: renewable sources have replaced coal as the primary competitors to oil and gas.