Green Building Law Blog : Green Building Lawyer & Attorney : Shari Shapiro: Calliope Communications, LLC

 Both Michigan v. EPA and Obergefell v. Hodges demonstrate a key learning about governance in America—context matters as much as, or perhaps more, than legal authority.

In 1998, the Environmental Protection Agency (EPA) decided to regulate mercury emissions. EPA apparently did not do a formal cost-benefit analysis (CBA) comparing the benefits to health, etc. with the economic impact on the power industry. However, EPA did submit a “Regulatory Impact Analysis” that estimated the regulation would cost the power industry $9.6 billion per year, for an apparently meager benefit of $4-$6 million per year.

When the mercury rule was challenged on the grounds that EPA had failed to perform a CBA, EPA argued that it was not required to do a CBA under the Clean Air Act, and that EPA did many cost-benefit analyses when implementing the regulation.

Justice Scalia, writing for the majority, held that EPA was obligated to do a CBA in deciding whether to regulate mercury emissions, and therefore the mercury regulations were invalid despite subsequent CBAs.

The LGBT community fought for years ahead of and during the same-sex marriage movement to build public approval of its cause, and to marshal factual evidence to neutralize its opposition’s arguments. Once the Obergefell reached the Supreme Court, the justices were faced with unassailable facts, and to take the transformed social context into consideration. In other words, same-sex marriage became a “no brainer.”

By contrast, in Michigan, EPA appears to have embarked on a battle with the coal industry without taking the regulatory context into consideration. EPA had to have known that the power industry was going to attack the EPA on the cost of its regulations. Without robust evidence to counteract that argument, the EPA left itself open to just the type of challenge brought in Michigan. Even if the EPA were under no obligation to do a CBA, it would have been wise to shore up its defenses from such an obvious line of attack, particularly when the Regulatory Impact Analysis showed a wide disparity in costs and benefits.

Further, given the regulatory environment where the public is regularly exposed to discussion (right or wrong) about the “excessive” costs of regulation. Advancing an argument that EPA does not have to do a cost-benefit analysis in deciding to regulate would not resonate with the public, and did not resonate with the Court.

The scope of regulatory authority is not the only thing agencies need to consider when regulating. The political and social environment is as important, or perhaps more so, than the jurisdictional boundaries of the law.

The EPA should take this education into the roll-out of the Clean Power Plan. EPA must have a sharp eye to measuring and articulating the costs and benefits of the state plans to reduce carbon emissions. In addition, EPA needs to radically ramp up its communications strategy, so that when the Supreme Court has to rule on the implementation of the Clean Power Plan, it’s a “no brainer.” 

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The Home and Garden Channel (HGTV) is the top rated cable network on the weekends.  At the end of every remodeling show on HGTV is the big reveal, dramatic "before and after" footage of the transformation of the kitchen or bedroom.

How does this relate to EPA?  On my Muse of Eloquence blog (which deals more generally with policy and communications issues), I discussed the Democratic losses last week, diagnosing it as a communications problem, not a policy problem.  

This is doubly true with respect to the Environmental Protection Agency.  Specifically, the Environmental Protection Agency needs to improve its brand image, not just among young voters (or, non-voters, as is more accurate), but with voters that turn out on a regular basis.  To do so, it must make the impact of environmental regulation personal.

Fortunately, the EPA has a lot of "before and after" images to use in its advertising campaign.  For example, above is a picture of air pollution in Los Angeles in 1968, before the Clean Air Act was passed in 1970, and 2005, 35 years later (Image courtesy of the Cooperative Institute for Research in Environmental Sciences (CIRES) at the University of Colorado Boulder).

CIRES conducted a study on what caused the reduction in air pollution.  Although population has tripled in LA since 1968, according to lead study author Ilana Pollack: 

LA’s air has lost a lot of its ‘sting,' Our study shows exactly how that happened, and confirms that California’s policies to control emissions have worked as intended.

"Before and after" footage is compelling because, by viewing the pictures, we are experiencing the change personally.  The EPA (and other Federal agencies, for that matter) needs to reframe the debate by spending more (a LOT more) of their budgets on advertising showing the American people the transformative impact that regulation has had on everyday life.  We await the big reveal in 2016.  

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Happy Monday!  

As I posted earlier, in Murray, et al v. EPA , plaintiff Murray Energy Corporation seeks to enjoin EPA's Clean Power Plan rule even before it has been issued as a Final Rule.  The Clean Power Plan proposes to regulate the carbon emissions of existing power plants under the Clean Air Act. 

 Last week, the states of New York, State of Connecticut, State of Delaware, State of Maine, State of New Mexico, State of Oregon, State of Rhode Island, State of Vermont, State of Washington, Commonwealth of Massachusetts, District of Columbia filed notice of their intention to participate as amicus curiae 

In June, Alabama, Kentucky, Oklahoma, South Carolina, West Virginia, Alaska, Nebraska, Ohio and Wyoming also filed an amicus brief in this case.

Assuming that the northeastern states support the Clean Power Plan, it sets up a sort of "Blue v. Grey over Green" battle, with the western states thrown in as well.   

There was also an interesting decision in the D.C. Circuit last week, lifting a stay on the EPA's Cross-Border Pollution Rule.  But, additional issues remain to be resolved in the DC Circuit case, so there will likely be more action on this critical rule.    

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Today, the EPA briefed Congress on its intent to

formally declare carbon dioxide and other heat-trapping gases to be pollutants that threaten public health and welfare.

This declaration clears the way for EPA to regulate greenhouse gases through the Clean Air Act and other regulatory mechanisms. 

According to the USGBC, in the United States alone, buildings account for 38% of all carbon dioxide (CO2) emissions.  Even if these statistics are wrong by HALF, that is still 20% of carbon dioxide.  Yet many cap-and-trade and other carbon management programs do not incorporate carbon regulation of buildings because they are categorized as "indirect" and therefore more difficult to calculate and regulate.  There is also the argument that the emissions from "direct" sources like power plants are already regulated, and therefore it will be easier to regulate their emissions.

However, the health and safety of buildings is already regulated by energy codes, fire codes,  building codes, zoning codes, etc.  If greenhouse gases are a threat to human health, regulation of greenhouse gas emissions from buildings is as critical as protecting from the risk of fire. Moreover, if a cap-and-trade system is put in place, carbon credits will be very valuable.  If reductions in greenhouse gases can be generated by high performance building practices, this value should be available to those developers who choose to pursue those solutions.

Today's announcement by the EPA will lead to regulation by the executive branch, or spur Congress to act to regulate greenhouse gases.  The regulatory solution must include a regualtory mechanism for managing the greenhouse gas emissions of buildings.

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Today, the EPA briefed Congress on its intent to

formally declare carbon dioxide and other heat-trapping gases to be pollutants that threaten public health and welfare.

This declaration clears the way for EPA to regulate greenhouse gases through the Clean Air Act and other regulatory mechanisms. 

According to the USGBC, in the United States alone, buildings account for 38% of all carbon dioxide (CO2) emissions.  Even if these statistics are wrong by HALF, that is still 20% of carbon dioxide.  Yet many cap-and-trade and other carbon management programs do not incorporate carbon regulation of buildings because they are categorized as "indirect" and therefore more difficult to calculate and regulate.  There is also the argument that the emissions from "direct" sources like power plants are already regulated, and therefore it will be easier to regulate their emissions.

However, the health and safety of buildings is already regulated by energy codes, fire codes,  building codes, zoning codes, etc.  If greenhouse gases are a threat to human health, regulation of greenhouse gas emissions from buildings is as critical as protecting from the risk of fire. Moreover, if a cap-and-trade system is put in place, carbon credits will be very valuable.  If reductions in greenhouse gases can be generated by high performance building practices, this value should be available to those developers who choose to pursue those solutions.

Today's announcement by the EPA will lead to regulation by the executive branch, or spur Congress to act to regulate greenhouse gases.  The regulatory solution must include a regualtory mechanism for managing the greenhouse gas emissions of buildings.

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I have written before about the conflict between local and federal regulation of green building.  But the issue of jurisdiction is not restricted to intergovernmental conflict.  At the federal level,  resources for green building are being largely handled by the Department of Energy, and not by the Environmental Protection Agency. 

The DOE runs the Energy Star program, for example.  In its page on "buildings" the DOE states:

The Department of Energy, through the Office of Energy Efficiency and Renewable Energy’s (EERE) Building Technologies Program works closely with the building industry and manufacturers to conduct research and development on technologies and practices for energy efficiency. The Department also promotes energy and money-saving opportunities to builders and consumers and works with state and local regulatory groups to improve building codes and appliance standards.

As you might expect, the DOE information is all about energy efficiency.  By contrast, the EPA has an informative page about green buildings, including information on water efficiency, sustainable communities, indoor air quality, waste reduction, toxics reduction and other considerations.  In short, the EPA takes into consideration the multi-faceted ways in which buildings impact the environment. 

Why should you care? On the EPA page regarding funding for green building projects it states:

EPA does not currently provide funding to support green building projects.

In the stimulus bill, which, you recall had $60 billion for "green" programs, the EPA was allocated exactly $0 for green building, and a measley $7 billion over all.  Don't believe me? Look at the EPA's own assessment of the stimulus money.  By contrast, the DOE was allocated $32.7 billion, with $5 billion for weatherization alone. 

The government agency charged with protecting the environment was essentially shut out of the "green" stimulus bill, and as a result, I wonder whether the overall environmental impact of buildings will be promoted effectively through research, incentives and other mechanisms.

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