The Flint Fiasco

Richard Epstein*

Richard Epstein

Richard Epstein

The details of the Flint, Michigan, water scandal are all too well known to require more than a brief summary. For many years, Flint obtained its water service from the Detroit Water and Sewage Department, which acquired its supply through both Lake Huron and the Detroit River. But with Flint in receivership since 2011, its city council decided to switch its water service to the Karegnondi Water Authority, which was in the process of constructing a pipeline to carry water to Flint from Lake Huron. Once Detroit realized that it could not keep the Flint account, it terminated its contract with Flint on twelve months notice in April 2014. Unfortunately, the KWA water pipeline was not scheduled for completion until sometime in 2016 and the Flint River was identified as an interim water source. The water from the Flint River contained many more impurities than the Detroit water. These chemicals leached the lead out of aging pipes, which worked itself into the water supply.

Exposure to high concentrations of lead has long been known to cause serious health problems, especially in children.  Unfortunately, some 6,000 to 12,000 Flint children are at risk for lead poisoning, which in small children can lead to intellectual disabilities and behavioral disorders, as well as impairment of the heart, kidney, nervous system, and other functions. It is no wonder that the EPA publishes extensive information about the risks of lead poisoning and what to do about it.

It is of course one thing to know about the risks of lead poisoning and another to do something about it. After the initial decision to switch Flint’s water service to KWA, there were signs that the discolored water was poisoned. But federal, local, and state officials were slow to remedy the situation. This is why citizens were outraged when studies confirmed the high presence of lead and other toxic chemicals in the water. Efforts to reconnect with the Detroit water systems floundered when the state-appointed Flint manager claimed that the Flint water met both federal and state safety standards. But a careful engineering study fromVirginia Tech demonstrated conclusively that lead levels in Flint exceeded these standards, in some instances by close to a thousand fold.

In the midst of the just denunciation of the many public officials who shared responsibility for the damage, its deeper structural cause has generally been overlooked: Flint residents are also the victims of government arrogance and massive misallocation of resources. Right now in Michigan, both the Environmental Protection Agency (EPA) and the Michigan Department of Environmental Quality (DEQ) share responsibility for protecting the public water supply. As is common, the current system of shared federal, state, and local control makes it all too easy for each group to rely on the other to prevent or minimize risks. This system of joint control also makes it exceedingly difficult to assign blame after the fact once the damage occurs. In addition, both of these agencies are protected from private lawsuits by an elaborate set of absolute federal and state immunities that protect them in their discharge of “discretionary functions.” Individual officials may, and indeed have, lost their jobs, but public relief is limited to bottled water and modest healthcare assistance.

To see how pitiful the current institutional structure is, imagine what would have happened if a private party had been involved in either the creation or the cover-up of the Flint water crisis. Tort law typically imposes strict liability on parties who either create danger or who, in breach of their duties, fail to discover or prevent it. That liability properly incentivizes private parties to take the requisite level of care needed to prevent undue public harm. However, it is also widely understood that tort remedies after the fact are slow and balky; governments at all levels put additional controls in place, including civil fines and criminal sanctions, to deter danger. There is no question that if these standards applied to government actors and agencies in Flint, they would be required to pay full damages, covering pain and suffering, medical expenses, and lost future earnings.  In all likelihood, they would also be at risk for both heavy punitive damages and criminal punishment for polluting the environment. There is currently a full-court press against Volkswagen for its widespread emissions fraud that in some cases resulted in pollution levels of up to 40 times permissible levels. It is doubtful that these emissions, egregious as they are, caused total damage equal in overall severity to the Flint fiasco. VW has set aside about €6.7 billion (or about $8 billion) in reserves for future losses. This is $8 billion more than will be collected from government agencies in Flint.

Perhaps the most powerful tool in the federal and state arsenal is embodied in the permit system. Section 404 of the federal Clean Water Act (CWA) imposes strict conditions on the issuance of permits that allow the use of dredged or filled materials in the waters of the United States. Similarly Michigan’s Wetlands Protection Act of 1994 tracks the CWA in that it requires that individuals secure a permit from the DEQ before cutting a tree, building a house, or digging a ditch, or face the combined force of federal and local government.

It is critical to note the uncommon vigor that governments at both levels direct toward private development. The statutory requirements apply to all projects great and small: remove any tree stump or bulldoze any land, and a permit is required. The conditions attached to these permits are exacting to say the least, given that public officials have virtually carte blanche to grant or deny a permit, subject to almost any conditions they deem necessary to give the greatest protection possible to wetland resources. The scope of both statutes is, moreover, immensely broad. Thus in the twisted 2006 decision in Rapanos v. United States both the United States and Michigan came arm-in-arm to the court to defend their interpretation of the term “waters of the United States” as including not just the waters of the United States—that is navigable rivers, but also the wetlands that are close to rivers, and dry lands from where it is possible that water could flow into wetlands. In a confused set of opinions, the broad discretion of the Army Corps was left largely untouched.

The aggressiveness of the current regime against private parties is subject, moreover, to massive abuse. In the 2012 decision in Sackett v. EPA, the EPA invoked its extensive powers under the CWA to conclude that the Sackett’s property contained wetlands that were part of the navigable waters of the United States, even though it was separated from the nearest body of navigable water, Priest Lake, by several other plots of land on which homes had already been built. Just digging a foundation for the house resulted in a strict order to stop work and to undo the work that was already done. The base fine per day for failure to comply with the statute was $37,000, which is doubled when the actions continue in violation of a specific compliance order. Sackett was able to duck the bullet in a decision that dealt with complex matters of administrative procedure. But make no mistake about it, the EPA and the DEQ still exercise enormous powers through the use of the permit system.

But to what effect? Right now the system of environmental controls is completely out of whack. The activities of ordinary people like the Rapanoses and the Sacketts pose trivial threats to the environment. Yet the government demands that these minor activities go through permit review, creating delays stretching into years and costs that easily exceeding tens of thousands of dollars. The great vice of this permit system is that it requires landowners to provide detailed documentation of, and immense precautions against, risks that have only a minute probability of occurrence. The old common law rule on this subject took exactly the opposite approach. It allowed all development activities to go forward until there was some sign of imminent peril, at which point the property owner could be enjoined from further activity and subject to damages and fines for any harm that remained. Those strong signals had the desired deterrence effect in virtually all cases, and did so at a fraction of the cost in delay and disruption than our current law.

The decision of the EPA and the DEQ to exercise their broad powers does more than delay sensible new development. In its own way, the inordinate attention that EPA and DEQ give to permits increases the chance of serious environmental harms from other more pressing risks that are left relatively unattended. Thus all agencies have limited budgets. The decision to pour extensive state resources into this mindless permit process diverts funds that could be used elsewhere, namely to supervise the huge level of governmental activities that are known at the outset to have a direct and immediate connection to environmental peril. Think of the senseless tragedies that could have been averted if government funds now wasted on an overwrought permit process were used to make sure that the transition of the Flint water supply had been sensibly and properly done.

Nor is Flint the only case of aggressive government environmental regulations resulting in major environmental harm. The case of the Animas River in Colorado has fallen off the public radar in recent months. But over the summer, an EPA excavation released some three million gallons of sludge, laced with heavy metals, into the Animas River wreaking havoc up and down its length. Much of this difficulty stemmed from an arrogance of power as the EPA ignored warnings from local experts that its efforts to eliminate pollution leakage could result in widespread damage. There are two lessons to learn here. First, the EPA is not the only group in town that is concerned with pollution. Second, the level of pollution released from this one incident probably exceeded by orders of magnitude the damage to the navigable waters of the United States that the EPA and state agencies have prevented through their permit system. The root of the problem here is that the EPA and other agencies assume that only they protect the environment and that private parties are always the ones who despoil it. The sad truth is that under the current laws, the greatest perils to the environment come from government agencies. It is hard for government agencies to learn that modesty is a public virtue. That will only happen when government agencies begin to focus narrowly on the serious threats to the environment—both public and private.  

*Considered one of the most influential thinkers in legal academia, Richard Epstein is known for his research and writings on a broad range of constitutional, economic, historical, and philosophical subjects.

Filtering the Clean Water Act

Richard Epstein*

Richard Epstein

Richard Epstein

On August 27, the Environmental Protection Agency and the Army Corps of Engineers suffered a rare judicial setback. On that date, District Judge Ralph Erickson of North Dakota issued a preliminary injunction that blocked the enforcement of the joint “Clean Water Rule: Definition of Waters of the United States,” which was supposed to go into effect the next day. This decision limits the power of the EPA under the Clean Water Act to expand its jurisdiction by fanciful readings of the statutory phrase “waters of the United States,” defined further as “navigable waters.”

Passed in 1972, the CWA sought to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” Once these waters are identified, they are subject to extensive regulation, most notably under Section 404 of the CWA, which requires all private parties and local governments to obtain permits before they can engage in any activity that has some impact upon these navigable waters. Obtaining these permits is never easy, both for private and public parties.

Oftentimes county and local governments, which do not have the luxury of inaction, find themselves in an awkward position where their own routine maintenance work to clean out waste and debris from ditches can be delayed by permitting requirements. The result is that they can easily find themselves in a double bind. Act, and there are serious penalties to pay. Don’t act, and there is flooding and potential liability for harms attributable to their neglect of basic duties.

Any decision by the EPA and the Corps to expand the scope of their activities will, as the American Farm Bureau points out in painful detail, impose onerous permit requirements on literally thousands of small ditches, often on a case-by-case basis. The same concerns are raised by the expanded definition of what counts as a tributary of a river, or in some instances a tributary of a tributary. None of these definitional anxieties are eased by the constant EPA refrain that its object is to “clarify and simplify implementation of the Act,” with bright line rules no less. In reality, the new rule is replete with areas in which case-by-case determinations need to be made on whether, for example, low-lying farm areas are covered by the CWA.

To see how far the current disputes have moved from the 1972 baseline, it is instructive to go back to some basics. The key statutory definition under the CWA is keyed to “navigable waters,” which in turn are defined as “the waters of the United States, including the territorial seas.” The CWA then makes it unlawful for any person to discharge any pollutant, broadly defined to include rock, sand, and dirt, into these navigable waters. The reference to navigation and the territorial seas makes it clear that the reach of the statute is limited to discharges into large bodies of water, where navigation is possible, if not just by steam ships then at least by canoes.

For many years, the definition of the waters of the United States received that traditional meaning. For major bodies, it makes sense to require a permit before discharging refuse or waste into a river, as lawsuits after the fact are a poor substitute for avoiding pollution in the first place. Permits that limit planned discharges are an effective way to organize pollution control.

For many years, the traditional definition of navigable waters held, but soon came under judicial attack that led to its total transformation. In its 1975 decision in Natural Resources Defense Council v. Callaway a federal district court issued a one page opinion that simply declared that Congress by using the phrase “‘the waters of the United States, including the territorial seas,’ asserted federal jurisdiction over the nation’s waters to the maximum extent permissible under the Commerce Clause of the Constitution. Accordingly, as used in the Water Act, the term is not limited to the traditional tests of navigability.”

At this point a court order held the CWA hostage to the vast expansion of commerce power inaugurated by the New Deal that covered much more than interstate transportation and communication. Now, all productive activity within the United States, including agriculture, mining, and manufacturing fell under federal power. But Callaway offered no explanation as to why that jurisprudence has to be crammed into a statutory definition that works its way back to the 1899 Rivers and Harbors Act, passed when federal commerce power jurisdiction was far more limited.

Nonetheless, this one judicial decision started a massive expansion of the scope of the CWA, as the Army Corps speedily went about making sure that anything that was water related was in fact subject to the permitting process of the CWA. When the stoked up version of the regulations reached the Supreme Court in its 1985 decision in United States v. Riverside Bayview Homes, the new definition of navigable waters included all wetlands, which were in turn “those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions.”

The regulation was unanimously upheld in a strongly statist opinion by Justice White. He first concluded that there was no need to give a narrow definition to the waters of the United States to avoid a potential problem that the government action might take private property without just compensation, and he then further concluded that it was an “easy” decision to conclude that the Corps had acted well within its regulatory powers.

Spurred on by that decision, the Corps continued to expand its jurisdiction. The only modest setback along the way was in the 2001 Supreme Court decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, where the Court balked at letting the Corps impose its “migratory bird rule,” by which the Corps sought to control intrastate waters “which are or would be used as habitat” by migratory birds.

But that one victory did not slow down the rest of the Corps operations. The massive nature of this new regulation is made plain in the introductory paragraph of Justice Antonin Scalia’s 2006 plurality opinion in Rapanos v. United States:

In April 1989, petitioner John A. Rapanos backfilled wetlands on a parcel of land in Michigan that he owned and sought to develop. This parcel included 54 acres of land with sometimes-saturated soil conditions. The nearest body of navigable water was 11 to 20 miles away. Regulators had informed Mr. Rapanos that his saturated fields were “waters of the United States,” that could not be filled without a permit. Twelve years of criminal and civil litigation ensued.

Justice Scalia was right to think that the case itself represented a massive and unwarranted expansion of government power under the CWA. But his opinion only carried four votes. Four dissenters led by Justices Breyer and Stevens took the position that Congress had indeed exercised its maximal powers of the waters of the United States so that the entire matter was best left in administrative hands. Thus, as is often the case, the decisive vote was cast by Justice Kennedy who sought to split the difference by deciding the proper definition required that “to constitute ‘navigable waters’ under the Act, a water or wetland must possess a ‘significant nexus to waters that are or were navigable in fact or that could reasonably be so made.”

Justice Kennedy’s wobbly position duly became the applicable standard. But just what does it mean? Justice Kennedy himself did not know, so he punted the entire matter back to the lower courts to figure out exactly what his “significant nexus” test meant. It does not take the benefit of hindsight to realize the fatal mistake in that decision. Jurisdictional rules have to be clear, and the substantial nexus test is a pure matter of degree. That test might have had some bite if Justice Kennedy said that the Corps did not come close to meeting the standard in Rapanos. But his remand signals the exact opposite conclusion, that significant in law could be turn out to be rather puny in practice.

Note that in claiming permit power, the Corps did not make any claim that Rapanos’s activities actually had any perceptible negative effect, real or anticipated, on the navigable waters of the United States. What the permitting process therefore did was to put the burden on Rapanos to try to prove the negative in a setting in which there is at most a de minimis likelihood that filling in dirt could result in damage to navigable waters located long distances away. At this point, the systematic mistake of a CWA on steroids is that it alters for the worse the standard common law rule that in private disputes an injunction against certain activities will be issued only on a showing of actual or imminent harm, at which point the activity is stopped until the situation is corrected. There is little unnecessary wastage under this rule, but no real loss in environmental protection.

Unfortunately, after Rapanos, the permit process was quickly untethered from any actual pollution. Now permits could turn on how an agency, as Justice Scalia notes, views the “economics,” “aesthetics,” or “recreation” of a proposal, and “in general, the needs and welfare of the people.” These standards are so fluid that virtually any result is consistent with them, and Kennedy’s mysterious requirement of some significant nexus does little in practice to hem in that discretion.

The great vice of the CWA permit system is its overkill: these exhaustive requirements are imposed in countless small cases where there is no risk of any harm. The result is a huge addition to administrative costs, and a delay in various projects. Nonetheless, it is this mindset that the EPA and the Corps seek to use to expand their power, without so much as offering a word of explanation as to just how much benefit can be obtained from this massive investment of private and public funds in the permitting system.

In light of the long history of deference to administrative agencies, it was somewhat of a surprise that Judge Erickson decided to put some teeth back into the significant nexus test. But in this instance, Erickson had enough ammunition to support the conclusion that the expanded definitions could not achieve their stated purpose, and that the rule therefore should be struck down as “arbitrary and capricious,” a tough standard under current administrative law. He took especial umbrage at the proposed rules that targeted “intermittent and remote wetlands” without showing their nexus to navigable waters of the United States, and further challenged a rule under which waters that are located within a 100-year floodplain or “within 4,000 feet of the high tide line or ordinary high water mark of a traditional navigable water, interstate water, the territorial seas, impoundment, or covered tributary” will require a “case-specific determination of a significant nexus.” So much for those clear and objective EPA standards.

The great tragedy of this case is that the litigation battles would never have taken place if the basic constitutional and statutory framework had not been twisted beyond recognition by earlier decisions. But under current law, litigating regulations like the CWA definitions is an exercise in the theater of the absurd. Let us hope that a modicum of common sense remains so that the EPA and Corps are sent back to craft a rule that makes economic and environmental sense.

*Considered one of the most influential thinkers in legal academia, Richard Epstein is known for his research and writings on a broad range of constitutional, economic, historical, and philosophical subjects.

The EPA's Clean Coal Dust-Up

Richard Epstein*

RICHARD EPSTEIN

RICHARD EPSTEIN

This past week in the Wall Street Journal, Kenneth Hill, the public utility regulator from Tennessee, joined Kentucky Senator Mitch McConnell in advocating that states boycott the EPA’s Clean Coal Plan (CPP) under the Clean Air Act of 1990. The plan would require the state to reduce the amount of carbon dioxide emissions so that by 2030 they are 30 percent below the 2005 levels. In making his case, Hill challenges EPA administrator Gina McCarthy’s soothing assurances that nothing in the EPA’s Clean Coal Plan will throw a monkey-wrench into coal operations, because “our rule creates a dynamic where cutting carbon pollution and investment decisions align.” That assertion is inconsistent with the report of the North American Electric Reliability Corp., which foresees major threats to transmission reliability, depending on exactly how the Clean Coal Initiative plays out on the ground. Indeed, it is far from clear whether sweeping new measures should be introduced to tackle this problem, especially since the EPA’s own figures show that emissions levels in 2013 were 9 percent below those in 2005.

Hill argues that the states should require the federal government to assume full responsibility for any Federal Implementation Plan, or FIP, that will govern those states that refuse to adopt a state implementation plan or SIP on their own. As of present, it is not clear whether this final confrontation will take place. Before that can happen, the courts will have to resolve the looming challenges to the EPA’s proposed rule, now that the EPA has pushed the envelope of its not inconsiderable statutory authority to regulate pollution.

The most notable opponent to the Clean Air Act is Harvard’s constitutional law Professor Laurence Tribe, who is a paid consultant for the Peabody Energy, whose wholesale denunciation of the EPA’s CPP for “burning the constitution” has attracted a strong dissent in forceful testimony before Congress from his own Harvard colleagues, Jody Freeman and Richard Lazarus, and from Richard Revesz, former NYU Dean and current head of the Institute for Policy Integrity.

The issues are complex and their resolution depends in large measure on understanding the ways in which the EPA’s CPP exercises its power. As is well explained by Mario Loyola in National Affairs, the devils lie in the details. His account is strongly at odds with Revesz’s claim that the EPA’s CPP program is just another chapter in the long-partisan tradition of effective pollution control.

The nub of the difficulty here is this: traditionally, the Clean Air Act pays homage to federalism by having the EPA set National Ambient Air Quality Standards (NAAQs), leaving it to the states to figure out how best to meet the national target in pollution control while knowing that the federal government can override them with its own FIP if the plan is not regarded as sufficient. Typically these SIPS were implemented under Section 112 of the CAA, which left it to the states to decide “the best system of emission reduction” (BSERs) to meet that standard. Generally, these were understood to let SIPs determine what technology to use to reduce pollution on a facility-by-facility basis.

The big difference with the CPP plan is that it takes these BSERs to the next level by announcing that SIPs should address four discrete “blocks” of issues that include modification of facilities but go beyond that to cover substitution of both natural gas and renewable energy for coal, and to taking measures to reduce the demand for energy within the state. Once the EPA proposed these additional measures, it became doubtful that it could act, as it traditionally had done, under Section 112, which deals only with emissions controls.

To avoid this problem, the EPA has asserted that it can regulate carbon dioxide emissions under Section 110, without regard to these limitations. Unfortunately, it appears as if resorting to Section 110 is only possible if regulation cannot be done under Section 112, which could be invoked now that the Supreme Court in its 2007 decision in Massachusetts v. EPA declared carbon dioxide a pollutant subject to EPA regulation. Unfortunately, the official text of the statute is of somewhat uncertain status because of the way in which it deals with two different versions of the 1990 CAA that were not fully reconciled in conference. The printed version limits the power of the EPA, while an alternative reading does not. Judicial decisions have pointed to a narrow reading of the EPA’s authority. Professor Tribe is surely correct to say that the EPA should not be accorded any administrative deference in deciding which version of the law controls. More likely than not, he is also not correct to claim that the printed version, done without an eye to the current controversy, should be accorded presumptive validity. In general, it is wise to have two different pathways to regulate the same types of pollution. Indeed, adopting this reading could abort the CCP before it gets off the ground.

Structurally, however, the CPP is subject to stronger objections that may yet play out in court. It is one thing to let the EPA specify the best technology for controlling pollution from a given source. It is quite another to allow it to venture into regulating the transmission and consumption of electrical power, especially since the first of these tasks is governed by the Federal Energy Regulatory Commission, or FERC, which normally leaves these issues to state control. This peculiar jurisdictional line up means that the FIP may not be able to incorporate any of the last three approaches that the EPA wants to be included in SIPs, at which point slashing carbon dioxide output from coal plants could require wholesale plant closings under the as-yet-stated FIP which may only be able to attack facility emissions directly.

EPA’s McCarthy praises the flexibility of her plans, by noting that the EPA “can look at stringency, timing, phasing-in, glide path,” and a lot else to make sure that grid reliability is not impaired. But therein lies part of the problem, for the question is just how much discretion should the EPA have in making decisions that could cost individual states and firms billions, especially since it appears that its direct regulatory authority to implement on its own only direct regulation of emissions from designated facilities. It looks therefore that the threat of very heavy direct cuts in output could be used to lever states to make alterations in local policy that the EPA is powerless to impose under its own authority. At this point, the crafty game of extending powers through threats does give rise to a serious constitutional challenge, as the EPA seeks to implement indirectly measures that it could not impose directly.

These difficulties are further compounded by the way in which the EPA sets its targets for different states, which, as Hill notes, could vary from as little as 11 percent in North Dakota to 72 percent in Washington. The huge differences are based on various local factors that relate to the ability to control carbon emissions. But the whole approach has to be taken with a grain of salt, given that the harm from carbon dioxide (which is itself the subject of serious scientific dispute, well summarized by Professor Judith Curry) in no way depends on the place from which it enters into the atmosphere, so that there is no issue of singling out dirty targets to clean up traditional forms of pollution in, say, high-sulfur areas.

Indeed, one great tragedy of this entire unfortunate episode is that it pushes further down the road any coherent way to deal with all forms of pollution. As I have previously argued, the best way to attack this problem is to direct attention to pollution outputs and not to elusive BSER standards under which it is not possible to ask the simple question of whether any particular reduction in pollution output is cost-effective. There could be a far more rapid shift to efficient coal plants if the EPA did not erect consistent barriers to getting new coal plants into service.

The huge level of discretion on these matters has given rise to the question of whether the coal companies can challenge the regulations on the grounds that they constitute a taking of private property without just compensation. On this point, Tribe’s claim that they can under current law is wholly unconvincing. The control of pollution lies at the heart of the government’s power to regulate under even the narrowest view of the takings clause. The effort to claim that somehow the EPA’s CPP “singles out” the coal industry for special treatment triggers one of the touchstones for a taking under modern law. But that principle usually applies to single parcels of land, not entire industry groups, so that it is highly unlikely that the coal companies could make out regulatory taking, under of all cases, Penn Central Transportation Co. v. New York City, which I noted in a recent column represents an indefensible expansion of state regulatory power to the confiscation of air rights when no threat of nuisance exists at all.

Tribe’s opponents, such as Revesz, Freeman and Lazarus, are therefore right to ridicule this constitutional argument. But their criticisms do not answer a more serious charge that can be levied against the CPP. Even if the end of pollution control is manifestly legitimate, the choice of means should be subject to higher levels of review than are often applied today. More concretely, the ability to set wildly different targets for different states opens up the real possibility that the EPA could help its political friends and hurt its political enemies. Right now, the courts are far too weak in the way in which they scrutinize this means-end connection in pollution. They should ratchet up their scrutiny of individual EPA determinations on carbon dioxide to see if they bear any relationship to sensible pollution control strategies, which on balance they do not.

At this point, the legal survival of the EPA’s CPP is anyone’s guess. Much will depend on the EPA’s own guidance documents about FIPs, which should come down this summer. But it is dangerous business to let the EPA take the coal industry hostage by this set of aggressive maneuvers. The Supreme Court’s initial wrong was Massachusetts v. EPA, which wrongly held that carbon dioxide counted as a pollutant under the Clean Air Act.

The simple point is that carbon dioxide raises unique issues that cannot be sensibly addressed within the basic Clean Air Act framework, which is why Congress should now legislate to take this confused matter out of the EPA’s hands. One central part of this technology is to ask the extent to which private incentives are likely to reduce overall carbon dioxide output, in light of improved technological efficiencies. A second key element is to develop a constructive national scheme that first updates the EPA’s 2009 endangerment finding on carbon dioxide, and then looks for a more even-handed regulatory scheme that does not hold an enormous dagger over the entire coal industry.

*Considered one of the most influential thinkers in legal academia, Richard Epstein is known for his research and writings on a broad range of constitutional, economic, historical, and philosophical subjects.