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Legal Planet Team

When President Obama lifts restrictions on funding for human embryonic stem cell research Monday, he will also issue a presidential memorandum aimed at insulating scientific decisions across the federal government from political influence, officials said today.

“The president believes that it’s particularly important to sign this memorandum so that we can put science and technology back at the heart of pursuing a broad range of national goals,” said Melody Barnes, director of Obama’s Domestic Policy Council.

The previous administration’s sins against science are perhaps its hardest to forgive.  Disagreements on values are a part of politics.  Disregard for facts should not be — nor should it be the stance of any American president, regardless of party or affiliation.

My pessimism stems from at least three places.  An obvious one is China and India.  No matter what the U.S. does, we cannot solve the climate change problem alone.  Even if the U.S. stopped emitting carbon altogehter global emissions would still exceed levels that scientists believe are necessary to minimize temperature increases.  My second cause for pessimism is that virtually every model used to predict climate-related issues has been wrong in the wrong direction.  Global emissions  may be outpacing the worst case scenarios included  in the 2007 Intergovernmental Panel on Climate Change report.    Sea levels are rising faster than predicted.  And the list goes on.   Finally, I fear tipping points and feedback effects:  as the globe warms,  “feedback loops” intensify warming (e.g., warmer oceans store less carbon and release more into the atmosphere,  melting sea ice can accelerate the melting of sea ice and so forth) making climate change worse than predicted.

If my pessimism is justified, does it lead to the inevitable conclusion that  geoengineering looms in our future?  Or at least that we ought to be planning for the possibility?  Geoengineering involves either removing greenhouse gases from the atmosphere entirely or manipulating the climate system through, for example, injecting sulfates into the atmosphere in an effort to cool the planet or fertilizing the ocean with iron.   These proposals can be enormously expensive and, more importantly, could make the cure worse than the disease.

And yet.  Shouldn’t we be at least planning for the possibility?  Credible scientists have begun to step into the fray, led in 2005 by Nobel Laureate Paul Crutzen’s proposal to add sulphate aerosols into the stratsophere.  Should auction revenue from a cap and trade program or new scientific funding be targeted toward responsible geoengineering research?  Should international organziations work to coordinate global cooperation on the topic aimed not just at regulating behavior but at enhancing research and understanding of geoengineering’s possibilities?

Her desire for a unified approach to energy and climate is understandable.  After all, the way we use energy that has led to most of the human contribution to carbon in the atmosphere.  In addition, it is hard to deny that if there is a national energy policy, it consists of a series of not-always-consistent initiatives.  The vision is that a comprehensive energy package can deliver a unified approach to our energy and environmental challenges.

Congress has taken this tack several times before, passing complex energy policy bills in 1978, 1992, 2007, and 2007.  But stuffing everything into a single bill has not always produced a consistent set of policies, and making all of the policy ideas live or die together has not always helped in getting legislation through Congress.  It took several years, for instance, to pass what ultimately became the Energy Policy Act of 2005.  In earlier versions, Democrats refused to support a bill allowing for drilling in the Arctic National Wildlife Refuge, Republicans refused to support a bill creating a national renewable portfolio standard, and neither side wanted a bill that didn’t contain its pet policies.  Toss in a disagreement about how to extend tax incentives for renewable energy development, and you have a formula for tying up Congress for quite a while.

While considering energy and climate intiatives as an ensemble could allow for a more intelligent discussion of our policies options, it also might lead to “least common denominator” lawmaking — in order to keep enough people on board, controversial ideas may need to be set aside.  It will take firm hands in Congress and eloquent leadership from the White House to make sure that a comprehensive new energy bill remains  thoughtful, internally consistent, and bold.

The Bush administration’s last-minute ESA (non)consultation rule is getting almost as much attention now as it did during the comment period. Then, the administration reportedly received more than 300,000 comments, the vast majority of them negative. Those objections were, of course, quickly swept under the proverbial rug so the administration could finalize its rule significantly cutting back on the application and scope of the consultation process. Now, Congress and the administration are rushing to figure out how to return the consultation process to its prior state.

Yesterday, the Washington Post ran a “mission accomplished” headline: Obama Reverses Bush Rule on Protection of Endangered Species. Not so fast. Although President Obama took a significant step toward that end today, the job is not yet complete. It would be a mistake for environmental advocates to stop pushing.

What the President did yesterday was to issue this memo to the heads of federal agencies. It directs the Departments of Interior and Commerce, which authored the objectionable Bush rule, to review that rule “to determine whether to undertake new rulemaking procedures” with respect to ESA consultation. Pending that review, the memo “request[s] the heads of all agencies to exercise their discretion, under the new regulation, to follow the prior longstanding consultation and concurrence practices involving the FWS and NMFS.” The Bush rule allows federal agencies to bypass the old consultation procedures (which were more protective of listed species) but does not mandate that they do so. Obama has now directed them not to take the new shortcut.

There’s no question this is a very good step, and an essential one to make sure that bad projects aren’t rushed through consultation in the short run, before the Bush rule can be fully expunged. But it’s not the end of the story, as the Post headline would have it.

Why not? I don’t mean to pick on that headline writer. It sure looks like a done deal. After all, the President, who ultimately controls most of the executive branch has now made it clear that he wants all agencies to use the old procedures until the Bush rule can be fully evaluated.

But two caveats remain. First, the bad Bush rule is still on the books. It could be revived immediately by another stroke of the pen. That’s not a serious concern right now, given the presence of a president who has solidly taken the side of protected species in this conflict. The outcome of the review he just ordered does not seem to be in doubt — before the election, candidate Obama declared his disagreement with the Bush rules. But complex rulemakings frequently take years, even entire presidencies, so it’s way too soon to breathe easy.

The second caveat is that it’s very difficult to maintain close control of the many federal agencies, and the many far-flung offices of those agencies, from the White House. Unfortunately, the memo’s effectiveness depends upon that kind of strong centralized control. Like most modern communications from the President to the executive branch, it is explicitly not enforceable by the courts. If agencies choose to ignore it, they can be called on the carpet by the President or his enforcers at the White House. But Presidents have many demands on their time and attention. Right now, this is a high-profile matter, and all federal agencies are likely to be on their best behavior. Soon, though, attention will inevitably turn to other matters — health care, the economy, etc. Mission-oriented agencies will return their focus to their primary missions. Some of them will inevitably resent the delays and loss of autonomy associated with consultation. History tells us that even in pro-environment administrations, there are plenty of agencies which would prefer to ignore their environmental responsibilities. It will happen in this administration too. The Bureau of Reclamation, the Department of Transportation, the Army Corps of Engineers, the Federal Energy Regulatory Commission, or some other agency with a legitimate, and in its view urgent, mission, will skip the old-fashioned consultation process. When that happens, as long as the Bush rule is on the books, environmental interests will have no remedy unless they can grab the attention of the White House or a cabinet officer away from competing demands. Those odds are a lot longer than they would be if the 1986 rules were back on the books, and all the environmental plaintiffs had to do was get a court to enforce them.

The Bush consultation rule still needs to be eliminated as quickly as possible. The best option for that is the 2009 omnibus spending bill. The House-passed version of that bill includes a provision that would authorize the administration to immediately throw out the Bush consultation rule, together with a separate Bush rule that limited consultation requirements for federal projects affecting polar bears. (The entire omnibus bill as passed by the House is here; the relevant section is 429, beginning at p. 540.)  The Senate is currently debating its version of the spending bill. Opponents of the consultation rider are working vigorously to remove it.

Should the spending bill not do the job, Representative Nick Rahall (D-W.Va.) has introduced a resolution to reverse the Bush consultation rule under the Congressional Review Act. Movement on the resolution is on hold while the spending bill, which is further along in the pipeline, works its way through the process.

If Congress does not manage to pass either measure, the Bush rule will have to be removed through the conventional administrative law process. Hopefully, the Departments of Interior and Commerce are setting to work on that right away, as the President has directed. And if they drag their feet perhaps they’ll get a push from the courts, where environmental groups and states have filed a number of challenges to the Bush rule, and which could enjoin implementation of the Bush rule or order it set aside.

UPDATE 3/5: Over at NRDC’s Switchboard, Andrew Wetzler reports that a Senate vote is likely today on an amendment seeking to strip the consultation rule provision from the spending bill. As he points out, this is a crucial vote for restoring the ESA as quickly and cleanly as possible.

UPDATE #2, 3/6: By a vote of 52-42, the Senate rejected an amendment proposed by Alaskan Senators Lisa Murkowski (R) and Mark Begich (D) that would have removed the consultation rule provision. The LA Times has the story here.

Cocoa bean shells have been long recognized as a biomass fuel, but aside from some limited application in Europe, they have not been a major player in the electric utility industry.  And while chocolate can solve many problems, given the 1 to 33 ratio of beans to coal it does not appear that chocolate will replace coal any time soon.   Nonetheless, use of the shells will likely divert them from landfills.

…the era of strong downtowns dominating the major cities is, with very few exceptions (city quarters with historic districts and some small tourist downtowns), long gone and will never return.

But a new EPA report examining building permit records across the country provides hard evidence that the trend to suburban housing may be starting to reverse itself. Despite the higher construction costs of building in urban settings, the greater likelihood of neighborhood opposition, regulatory hurdles and lack of supporting infrastructure, the data show a new picture of US settlement patterns emerging:

…there has been a dramatic increase in the share of new construction built in central cities and older suburbs. Specifically, in roughly half of the metropolitan areas examined, urban core communities dramatically increased their share of new residential building permits.

The report demonstrates that in fifteen urban regions across the US, the central city more than doubled its share of permits. It shows that the trend to urban housing “has been particularly dramatic” since 2002. And despite the downturn in the housing market, data from 2007 continue to show the shift to infill development.

What explains this new trend? While there are likely many factors at play, including the efforts of urban planning departments to focus new development in the inner city and investments in downtown-oriented public transit and development projects like convention and sports centers, the true cause appears to be the consumer.  As a new generation of home buyers emerges, the old paradigm of a 1950s-style suburban life may be losing sway. Younger families, singles and older citizens in particular are seeing the value of a life free of auto-dependence and within walking distance of urban amenities.  And as governments and the market respond to this demand, we are likely to see this new version of the American Dream become more prevalent.

The Court holds that the Sierra Club and its members along with other environmental organizations) do not suffer any “‘concrete injury’” when the Forest Service sells timber for logging on “many thousands” of small (250-acre or less) woodland parcels without following legally re­quired procedures-procedures which, if followed, could lead the Service to cancel or to modify the sales.  Nothing in the record or the law justifies this counter­ intuitive conclusion.

Doctrinally, the most significant part of the opinion is the holding that procedural rights do not provide a basis for standing unless the plaintiff can demonstrate a concrete stake in the outcome of the dispute.

This was a predictable  holding.  Predictable because in many different contexts, the Court has only viewed procedural rights as having utilitarian value in changing the outcome, rather than having any intrinsice value of their own.  We see this in decisions involving due process and in the harmless error doctrine.  The decision also fits into a line of cases refusing to allow plaintiffs to raise broad programatic challenges to the adminstration of government programs.

Nevertheless, the decision does undermine the ability of Congress to impose legally binding procedural requirements on administrators.  This could be another context where state governments could be helpful (as in Massachusetts v. EPA).  Although it may be impossible for any individual plaintiff to prove that she would have visited one of these woodlands, it would be easy for a state to show that the decision would impact some of the woodlands within its borders.  Congress might want to consider encouraging plaintiffs to run the standing gauntlet by providing enhanced attorneys fees (for instance, allowing a contingency multiplier).

UPDATE 3/5: Congressional Quarterly reports that it’s not just Menendez:

Multiple senators have placed anonymous holds on the science advisers’ nominations, according to John D. Rockefeller IV , D-W.Va., chairman of the Senate Commerce, Science and Transportation Committee, which has jurisdiction over the nominations.

The convention of permitting “holds” for reasons unrelated to the qualifications of a nominee is bad enough. To allow those holds to be used anonymously is absurd.

Pawa made the good point that as GM continues to plead for additional bailout money, it and the auto industry are turning around and using that money to appeal this court loss, funding highly-paid private lawyers to press the losing case that they should continue to build the carbon-spewing dinosaurs that got them into this mess.  Even assuming EPA head Lisa Jackson soon grants California’s request for a waiver allowing the state to go forward with its clean-car regulations, as looks likely, the Big Three will still be fighting in the courts for the right to build less efficient cars.  Doesn’t this seem wrong?  Should American and California taxpayers be subsidizing the auto industry’s expensive, backwards, and, ultimately, futile efforts to thwart progress on developing a more efficient and less polluting U.S. car fleet?

Pawa made a simple suggestion to fix this inequity, one that circulated last December as well, at the time of the first auto bailout.  Let’s condition any further taxpayer assistance to the automobile industry on an explicit authorization for California and other states to implement California’s landmark greenhouse gas emission standards.  Whether we do it through a simple Congressional enactment or through executive branch dealmaking, last week’s Gallup poll numbers show a new round of auto bailout funds to be deeply unpopular and suggest there’s leverage to get this done.

Of course, there are costs to the ESA. We might lose out on economic development opportunities because of concerns about habitat destruction. The resources we spend on restoring endangered species might be worth spending on other goals. And the ESA regulatory program has its share of paperwork and administrative costs. But when Congress passed the ESA in 1973, it concluded that species protection was generally speaking worth these costs. And Congress hasn’t changed its mind since then.

One of the key provisions of the ESA is what lawyers generally call “Section 7” – it’s the part of the Act that requires federal agencies, when they undertake activities such as development projects, to consult with the agency that implements the Act, the U.S. Fish and Wildlife Service (FWS). The point of that consultation process is to help both the agency proposing to undertake a development activity and FWS to work together to determine what the impacts of that action might be on endangered species. If the proposed action might cause serious harm to the species – what the Act calls “jeopardy” – it is prohibited unless it is changed to reduce or eliminate that harm.

Consultation is incredibly useful. It ensures that both the action agency and FWS gather relevant information about endangered species and potential impacts on those species; it ensures that a disinterested agency that is not committed to the development project (FWS) looks over the data and draws reasonable conclusions about what that data means; and it means that if the data show that the project might cause too much harm to endangered species, it will have to be stopped or changed. This consultation process is particularly important because in many cases we know very little about why species are endangered, or what the impacts from development projects might be on their species. By making the development and analysis of information by a neutral, outside agency a precondition for proceeding with the development project, the consultation process helps encourage high-quality research and analysis on endangered species. Better information means better regulation, better protection, and a better chance for recovery.

Unfortunately, the last administration has taken steps to undermine the consultation process. In particular, they have proposed changes to the regulations that implement the ESA that would create substantial loopholes in the Act’s consultation requirements. Those regulations would mean that a wide range of proposed federal actions might not require consultation. Those changes are ill-advised because in many cases the proposed actions that they would exempt from the consultation process are the types of actions for which we have very little information about their effects on endangered species. Indeed, in some cases, the proposed actions would be exempt from the consultation process precisely because we have very little information about their potential impacts on endangered species. But what we need if we are serious about protecting endangered species is not less information, but more.

Congress is currently considering allowing FWS to overturn these changes, and the Obama Administration has also indicated they may seek to overturn them on their own. Both Congress and the new Administration should work together to ensure that the ESA continues to work properly to protect endangered species now and in the future.

For a short article providing a summary and analysis of the changes to the consultation regulations, click here.

Karl Marx

Conservatives might be seeking a spiritual leader, organizing principle and fresh identity, but they at least seem to have settled on a favorite rhetorical ogre: socialism.

As in, Democrats are intent on forcing socialism on the “U.S.S.A” (as the bumper sticker says, under the words “Comrade Obama”).

This trend, as reported by the New York Times,  raises the question of whether environmental law is “socialist” in some sense.  No doubt many of Rush Limbaugh’s fans think so, but it’s hard to know what this allegation would mean.

It’s a bit ironic that the socialist label is emerging at a time when environmental advocates are prone to advocate market-based mechanisms like carbon taxes and cap-and-trade. Traditionally, socialism meant government ownership of the means of production.  I’m not aware that anyone is arguing in favor of this as a solution to our environmental problems.  It’s certainly not obvious that socialism in this sense has any connection, even remote, with environmentalism — government-owned industries don’t seem to have a better environmental track record than private firms.

Some environmentalists do have qualms about capitalism and view it as a driver of environmental harm, as in Gus Speth’s book, The Bridge at the Edge of the World. But Speth doesn’t seem to favor socialism as a solution. Of course, if socialist is just the flip side of laissez faire, then environmentalists are socialists — but so is the discipline of economics, which has long identified externalities like pollution as prime market failures.

Joe Sax

Probably it is a mistake to look for intellectual content in the effort to resurrect forgotten political labels as terms of abuse.  There is one sense, however, in which I suppose that the word could be used in a meaningful way in the environmental context.  Many environmentalists, beginning with my colleague Joe Sax, have seen the public trust doctrine as a kind of model for thinking about environmental issues.  (For instance, his book  Playing Darts with a Rembrandt, explores ways in which our understanding of some kinds of private property interact with the conceptions of the public interest.) As a doctrinal matter, the public trust doctrine seems limited to water bodies and their boundaries, but environmentalists do tend to think that property right come with complementary obligations to respect the public interest.   If as we are taught in law school, property is a “bundle of sticks,” then the public holds some of the sticks, and so even “private property” has its public aspect.

This recognition of the public aspect of “private” property is perhaps  a very distant cousin of socialism, but it does have in common with socialism a willingness to view property as in part communal rather than inherently individual.  In terms of property theory, the question is whether the essence of property is exclusivity, or whether property is just a name for complex institutions by which various people (not just the putative owner) can exercise control over some “thing.” Perhaps this public regarding view of property could be considered vaguely akin to socialism.

To paraphrase Patrick Henry, “if this be socialism, make the most of it!”

Clean coal research and development is absolutely crucial in fighting climate change not for us, but for India and China. India has the fourth largest reserves of coal in the world — most of it very dirty, with high ash content. It currently imports 70% of its oil, which will rise to 90% by 2020 (this according to Edward Luce’s fabulous book In Spite of the Gods.). China, meanwhile, is both the world’s largest producer and the largest consumer of coal power.

I want them to switch to solar and wind as much as anyone else. But I have yet to see any credible estimates that India or China can grow in the way that they want to — and justifiably expect to — purely through renewables. It’s going to be hard enough for the United States to do so, and we still rely heavily on oil.

It is thus in the US interest to push for clean coal development not for us, but for India and China. Without it, they will either continue to burn dirty coal, or start competing with the west for oil supplies. Isn’t the latter good? Don’t we want the price of oil to go up? Yes, but through a carbon tax, not through giving more money to the Saudis or the Iranians (and then borrowing from the Chinese to pay for it).

It is reasonable — and necessary — for the United States to get rid of dirty coal plants. But we can’t expect two poor countries to bear the cost of getting rid of dirty coal for a global public good like climate change mitigation. That means the United States needs to invest in carbon sequestration technology — and in a big way. It doesn’t mean that we should build more coal-fired plants, but as the MIT Future of Coal study noted, the federal government does need to substantially increase its R & D, and coordinate these efforts far better than it has done in the past.

India’s Prime Minister Manmohan Singh has noted that “the quest for energy security is second only in our scheme of things to our quest for food security.” New Delhi (and presumably Beijing) will not stop burning coal just because we want them to do so. We need to help. Rejecting a sensible investment strategy here is going in exactly the wrong direction.

Cross-posted at the Reality-Based Community: www.samefacts.com

The promise that the House would effectively reduce its greenhouse gas emissions to zero was a centerpiece of the Green the Capitol program in which the new Democratic leadership sought to use Capitol Hill as a kind of a national demonstration project.

But last week, a spokesman for the House’s chief administrative officer said the chamber’s leadership had dropped an essential part of the plan, the purchase of “carbon offsets” to cancel out emissions from its buildings. Offsets are a controversial commodity that promises that a certain amount of pollution was captured or avoided elsewhere.

Nevertheless, there has been some real progress:

The Green the Capitol program, announced in June 2007, has made major changes in the way the Hill moves, works and eats.

Four hybrid Zipcars are now available in House garages. The House supply store sells only 100 percent post-consumer recycled paper. And Capitol cafeterias have switched to biodegradable plates, locally grown foods and a composting system that has cut waste.

The Roundtable’s consultant issued its report on February 17th. While the Roundtable expresses an interest in developing a “common sense” national climate change policy, its criticism sounds like a classic business attack on environmental protection efforts. According to the Roundtable, a cap and trade program would raise prices, which in turn would “retard” job creation. It would discourage the deployment of new “advanced” coal-fired power plants (defined as including plants with and without carbon sequestration). The report expresses concerns about the effect of the SCI on hydroelectric and nuclear power plants, but it is not clear why. In addition, the report tries to minimize the value of a carbon reduction program by claiming that the WCI, alone, would have only the slightest effect on reducing global temperatures.

The Western Business Roundtable’s recommended solutions include a “call for the rapid deployment of the full range of low carbon-emission power generation technologies across the West – including those fueled by coal, natural gas, nuclear and hydropower – in order to fuel economic growth and job creation while reducing emissions.”

By raising the specter of higher prices, the Roundtable implicitly rejects the principle of putting a price on environmental externalities. In addition, it discounts the argument that renewable energy projects will lead to a net increase in jobs. Its call for more conventional coal and gas power plants ignores the very premise of a carbon reduction program. And its effort to isolate the potential benefits of the WCI from other worldwide carbon reduction efforts suggests that we have no responsibility to address our contribution to a global problem.

Many would bet that the Western Business Roundtable’s assessment of economic impacts of cap and trade is wrong. Regardless, the Roundtable’s argument stands for the proposition that we ought to cut back on carbon reduction efforts whenever we might otherwise compromise economic growth as traditionally defined. This is a serious concern, since the compromise language in California’s climate protection law (AB 32) allows the governor to suspend the state’s carbon reduction goals for economic reasons. The question is whether we can afford that particular luxury.

The traditional approach of organizing climate change research by scientific disciplines (e.g., atmospheric chemistry) or biophysical processes (e.g., carbon cycle) has led to significant advances in our understanding of the climate system and the creation of a robust observations and modeling infrastructure. However, the paucity of social science research and the separation of natural and social science research within the CCSP, as well as the insufficient engagement of policy makers, resource managers, and other stakeholders in the program are hindering our ability to address the problems that face society. . . .

The committee recommends that the program be restructured so that the existing CCSP research elements (e.g., atmospheric composition) and cross-cutting themes (e.g., modeling,observations) contribute directly, although not exclusively, to critical scientific-societal issues such as fresh water availability, extreme weather, and sea level rise. . . .

• The San Francisco Chronicle reported that the return of fall chinook salmon to the Sacramento River hit a record low last year.
• The Pacific Fishery Management Council released a gloomy preseason estimate of 2009 stock abundance, leading to speculation that there might again be no commercial ocean salmon fishing this year.
• The Bureau of Reclamation forecast that agricultural contractors would get no water from the Central Valley Project this year. And despite recent rains, the Governor on Friday declared a statewide drought emergency, calling on all residents to reduce water use by 20%.
• Judge Wanger agreed to give the National Marine Fisheries Service another 3 months to finalize its biological opinion on operations of the Central Valley Project and State Water Project. (Hat tip: Aquafornia)  When finished, the BiOp is expected to conclude that project operations jeopardize not only salmon but also, as Rick explained here, the Puget Sound orca population.
• The State Water Resources Control Board declined to waive Delta water quality standards as requested by the Bureau of Reclamation and Department of Water Resources. Ever fearless, the Board decided that recent rains had made a waiver unnecessary, and declined to punish the water agencies for having violated the standards while their petition was considered.
• The Coalition for a Sustainable Delta, the same group of farmers that brought you the striped bass lawsuit against the Department of Fish and Game, added yet another layer to Delta litigation, suing Stockton over urban runoff and sewage overflows that are allegedly harming the Delta. (Hat tip: Aquafornia)

This case consolidated environmental, state, and industry challenges to EPA’s 2006 changes to the National Ambient Air Quality Standard (NAAQS) for particulate matter.  In setting the NAAQS, EPA is required to consult its Clean Air Scientific Advisory Committee (CASAC), an independent science advisory group, and to explain any departure from CASAC’s recommendations. In this case, CASAC had recommended an annual fine particulate NAAQS of 13 to 14 μg/m³. When EPA chose 15 μg/m³ instead, CASAC first requested reconsideration and then publicly questioned

“whether [EPA Administrator Stephen Johnson had] appropriately given full consideration to CASAC’s expert scientific advice — obtained through open, public processes — in [his] final decisions on the PM NAAQS.”

The decision drew criticism from scientific groups including the American Medical Association, and became something of a media cause celebre, with CASAC’s objections prominently featured in many of the stories.

Given that history, when the new standards were challenged it seemed likely that CASAC’s strongly expressed views would play a role in the reviewing court’s decision. And it did. The court concluded that EPA had”failed adequately to explain its reason for not accepting the CASAC’s recommendations.”

EPA staff featured nearly as prominently. The court repeatedly emphasized that staff and CASAC had agreed on the need for a lower annual standard. And it overturned EPA’s refusal to set a separate secondary NAAQS to protect visibility, relying heavily on a staff paper examining the visibility levels people find acceptable.

Two lessons emerge from this experience. First, when decisions are supposed to made primarily on the basis of scientific evidence, courts recognize and value politically independent valuations. The political bosses at EPA need not accept the regulatory levels recommended by their scientific advisors or career staff. But they must provide reasons and logical arguments supporting their departure from those recommendations. That means that the politicos at EPA must acknowledge and defend their political decisions. It’s hard to argue with that.

Second, it is critical that the views of these more politically insulated actors appear on the administrative record so that courts can give them the weight they deserve. The Clean Air Act helps to ensure that by specifically requiring that the agency explain departures from CASAC’s recommendations, and by setting up a procedure that includes submission of a staff report to CASAC in a public proceeding. Other statutes lack this procedural strength. Perhaps if there were an independent committee reviewing staff reports on proposed listings under the Endangered Species Act, Julie MacDonald’s attempts to browbeat career staff at the Fish and Wildlife Service would have come to light much sooner.  Of course, no one wants ESA decisions to take as long as revising the NAAQS. But there must be a way to get the unvarnished views of career staff on the record without paralyzing the process.