Category Publications

Regulatory Red Herring: The Role of Job Impact Analyses in Environmental Policy Debates

The current debate on jobs and environmental regulation too often relies on thinly-supported forecasts about jobs “killed” or “created” by public protections. In this debate, the larger costs and benefits of protections for clean air or water can get lost.

In Regulatory Red Herring, the Institute for Policy Integrity at NYU Law looks at how economics can be used to estimate or distort the effects of environmental regulation on layoffs and hiring. Through the choice of datasets or economic models, job impact analyses used in advocacy can tell widely different stories. These modeling tools have important limitations that are rarely communicated, leading to misunderstanding and counterproductive political debates.

Stewarts’ New Book Diagnoses U.S. Nuclear Waste Policy Failures

University Professor Richard Stewart and his wife Jane Stewart ’79, have just published Fuel Cycle to Nowhere: U.S. Law and Policy on Nuclear Waste. The Obama Administration’s abandonment of the Yucca Mountain repository in Nevada—the sole destination for disposal of nuclear waste—has created a crisis as waste continues to pile up at nuclear power plants. The book analyzes the roots of the crisis and proposes solutions.

The Fukushima disaster in Japan and the continuing threat of terrorist attacks on the 65  operating nuclear reactor sites across the country that currently store wastes make solutions all the more urgent. The Stewarts offer fresh strategies, based on consent by informed host localities and states, new funding mechanism, and a new federal corporation to manage waste – for developing a new waste repository to bury wastes as well as consolidated interim storage facilities. The Blue Ribbon Commission on America’s Nuclear Future appointed by President Obama, to which Professor Stewart presented last November, recently issued draft recommendations that track many of the proposals made in the book.

Fuel Cycle to Nowhere provides the first comprehensive history and overview of U.S. nuclear waste law and regulation. The Stewarts trace sixty years of nuclear weapons programs, the growth of nuclear power, their waste legacies, the rise of environmentalism, and the responses of federal agencies. They examine a success—the Waste Isolation Pilot Plant in New Mexico, known as WIPP, the world’s only operating deep geologic nuclear waste disposal facility—but also many failures, including Yucca Mountain. The lessons learned from these experiences provide the foundation for the book’s policy recommendations.

New Publication: Carbon Capture and Storage: Emerging Legal and Regulatory Issues

Recently, University Professor Richard Stewart, along with two University College London (UCL) colleagues, Ian Hovercraft and Richard Macrory, edited a book on carbon capture and storage. The book follows the successful two-day Carbon Capture & Storage Global Legal Symposium in March 2010.

CCS, as it is known, aims to combat global climate change by trapping carbon dioxide emissions from places such as refineries and factories, and, then sequestering it underground. Each step of the process (capture, transportation and storage) raises legal and regulatory issues and these were the subject of the symposium, and now the book.

Carbon Capture and Storage: Emerging Legal and Regulatory Issues brings together some of the world’s leading practitioners and scholars working in the field of carbon capture law and regulation to provide a critical assessment of progress to date and challenges on the horizon. Chapters cover developments in international public law, the European Union, the United States, Canada, and Australia, together with perspectives from China and India. Finance and questions of public perception and participation also receive special attention.

Macrory, a professor of environmental law at University College London Faculty of Laws (UCL), is also was also senior global research fellow at the Hauser Global Law School.

John Wood ’11 publishes article on major environmental case just as it reaches Supreme Court

When John Wood ’11 decided to follow the federal environmental case American Electric Power Co., Inc. v. Connecticut, he pursued it all the way. Not only did Wood publish his substantial writing requirement paper about the case in theEnvironmental Law Reporter, a top journal in the field, but he also traveled to Washington to witness the oral argument for himself, seeing the issues raised in his article play out at the Supreme Court level.

AEP v. Connecticut involves the allegation that utility companies generating power with coal are emitting levels of carbon dioxide that contribute to global warming, with resulting damage to human health and natural resources. Asserting common-law nuisance claims, Connecticut and five other states are seeking injunctions against a group of major companies first to cap and then to reduce those greenhouse gas emissions.

Wood’s article, “Easier Said Than Done: Displacing Public Nuisance When States Sue for Climate Change Damages,” discusses the separation-of-powers issues that arise when all three federal government branches grapple with climate change simultaneously. The research for the article was supervised by Adjunct Professor Michael Livermore ’06, executive director of the Institute for Policy Integrity.

“I took a risk in writing about AEP, because my analysis could have been preempted at any time by action on climate change from Congress or the executive branch,” said Wood. “However, in the interim, Congress failed to pass climate change legislation, and the executive branch and Congress fell into an intractable power struggle over the EPA’s authority to regulate greenhouse gases under the Clean Air Act. As I finalized my article, the Supreme Court granted certiorari to AEP.”

Wood attended the April 19 oral argument with Adjunct Professor Nancy Marks, the Natural Resources Defense Council senior attorney who co-teaches the Environmental Law Clinic that Wood is currently taking. He noted that the justices grappled with the distinction between preemption and displacement. Unlike the preemption of state law by federal law, displacement occurs when a federal statute knocks out the federal common law.

In his article, Wood analyzes various standards used to determine if displacement has occurred. He argues that there is a strong case to be made against displacing the federal common law when the plaintiffs are states. If the states lose public nuisance lawsuits, Wood asserts, they should lose on the merits rather than by having the courthouse doors barred to them at this preliminary stage in the litigation. He is crossing his fingers that a Supreme Court clerk will come across his article before the justices rule.

Wood came away from the argument with the sense that the plaintiffs had an uphill battle in swaying the justices. But whichever way the majority opinion goes, Wood is grateful to have been so close to the proceedings. “I am still blown away at how comprehensive and nuanced the justices’ understanding was of climate change and the regulatory apparatus of the EPA,” he said. “No matter how the case comes out, I hope it galvanizes an affirmative federal response to climate change. This was a highlight of my Law School experience that I will never forget.”