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Bangla Desh Flooding

David Robert’s second installment of his ruminations on carbon taxes is out here, and is worth a read. Shorter David Roberts: a $10 per ton carbon tax based on low estimates of the social cost of carbon is still well beyond what U.S. households would be willing to pay to address climate change, but political resistance fades if the revenues are used to promote clean energy.  Ten dollars a ton works out to about ten cents per gallon of gasoline.

Even shorter Roberts: $10/ton too much (politically) to pay for climate. Much as I’d like, I can’t disagree with his political economics conclusion.

Roberts also asserts that

A consensus has formed among economists, climate wonks, and progressives that a carbon tax is the best way to address climate change. In some quarters, rhetorical support for a carbon tax is seen as a litmus test for whether policymakers are serious about climate change.

Roberts then assumes that a carbon tax would or should be set at the social cost of carbon, per ton, even while acknowledging that estimates of the social cost of carbon almost certainly understate the true economic costs of climate change.

I think that even if one could calculate and monetize the true social cost of carbon, basing a tax on social cost would simply reinforce the imposition of climate harms on the global poor. Basing a tax on the social cost of carbon does not seek to prevent severe climate harm; rather, it simply seeks to reach the economically optimal rate of severe climate damage.  In other words, a “social cost of carbon” tax is simply cost-benefit in disguise – wealthy carbon emitters would rather pay the tax to continue their profitable carbon based economy, seeing the cost of compensation for the cheap social costs to poor people as a cost of doing business.  To add insult to injury, these “social cost” taxes would not be used to compensate those suffering the most severe climate harms, but rather would (in the best case) be recycled into making renewable energy cheaper in the developed economies best able to adapt to climate change

Let me explain. Under cost benefit analysis, the decision to impose an environmental limit is based on comparing the polluters’ cost of compliance with regulation against the dollar value of the environmental, economic, and health harms avoided by the regulation.  If the dollar cost exceeds the dollar “benefit,” the regulation is rejected and society as a whole is richer, even if lots of individual people end up worse off.  There are huge problems with cost benefit analysis – chief of which is the fact that there is no reliable way of monetizing environmental and health values for which there are no markets. The best critique of cost-benefit analysis out there is a book by Frank Ackerman and Liza Heinzerling, appropriately entitled “Priceless.”

Cost benefit analysis-based regulation is also highly regressive — when regulation is foregone because it would cost more to avoid the harms than it would to compensate the victims of the harms, the regulations is not imposed, industry (generally wealthy) saves the cost of avoiding the harms but the victims of the harms (generally poor) do not receive compensation. My  current research project is an argument that CBA should always consider the availability of compensation to the victims of environmental harms before regulation is foregone.

So here’s the problem with a social-cost based carbon tax.  This approach does not seek to avoid catastrophic climate change; it only seeks to avoid catastrophic climate change the dollar cost of which exceeds the dollar cost of avoidance.  Look at it this way – let’s say that uncontrolled climate change will wipe out the entire GDP of Bangla Desh, about $175 billion.  Suppose that climate harm (combined with similar harms in developing nations) would translate into a social cost of carbon of $10 per ton (I am making no representation that these numbers actually work out).  And let’s say that at $10 per ton of carbon (around 10 cents per gallon of gas), it is much cheaper to pay the tax and keep using fossil fuels, accepting the global loss of the entire Bangla Deshi economy. End result: governments in industrialized nations collect ten dollars a ton in carbon taxes, spend that money domestically, and the Bangla Deshi economy and people disappear. Same result as under cost benefit analysis, as the “cost” of switching from fossil fuels in the industrialized nations exceeds the dollar “benefit” of preserving the Bangla Deshi economy.

Yes, this approach is highly reductive, and ignores the human costs of climate change.  But  any attempt to put a dollar cost on human suffering to calculate the “social cost” of climate change shares this defect. Just like cost benefit analysis.

Economists might cheer this result as it maximizes global wealth, at least as measured in dollars. Neo-classical economics sees an improvement when the wealthy get wealthier and the poor get poorer, so long as the wealth added to the wealthy exceed the losses to the poor.  Distributional justice is someone else’s problem; if society is richer, it could always redistribute the wealth.

But it doesn’t.  And a social-cost based climate tax would not pay compensation to the biggest losers in climate change.

That’s why I would favor a cap-and-trade approach — under cap-and-trade (if done correctly, which is doubtful) the cap could be set at the level necessary to avoid catastrophic climate change.  As Paul Krugman explained,

In practice there are a couple of important differences between cap and trade and a pollution tax. One is that the two systems produce different types of uncertainty. If the government imposes a pollution tax, polluters know what price they will have to pay, but the government does not know how much pollution they will generate. If the government imposes a cap, it knows the amount of pollution, but polluters do not know what the price of emissions will be.

So if we want a certain amount of carbon reduction – say, perhaps, enough to avoid super-catastrophic 2 degrees C warming – then cap and trade is the way to go.  If we must go with a tax, then the tax should be based on the best estimate of what it would take to get widespread fuel switching away from fossil fuels.  The only estimate I have seen is more like $1,000 per ton ($10 per gallon of gas) in order to achieve an 80% reduction in emissions.  That’s what it would take.

But a tax based on the “social cost of carbon” just maximizes the wealth of the wealthy at the expense of the global poor.

I see that both David Roberts and Paul Krugman have been writing about carbon pricing — specifically carbon taxes — this week as a mechanism to achieve the dramatic energy transition needed to address climate change.  To be fair, Paul Krugman seems to have jumped the gun on Roberts by following his twitter feed.  Meanwhile, Bernie Sanders has excited the climate activists by making a carbon tax part of his official platform on climate change

Roberts acknowledges a key point about carbon pricing that politicians don’t like to, whether via tax or cap-and-trade:

Depending on how they are structured, the economic impacts of the two policies are equivalent. They raise the price of fossil fuels. There are interesting debates to be had about their relative merits, but that’s for another post.

What political advocates of carbon pricing fail to discuss much  is that carbon taxes work by raising the price of fossil fuels to the point that  consumers will switch to renewable fuels because they are cheaper.  Carbon pricing works, if it works at all, not by making renewables cheaper, but by making fossil fuels more expensive (relative to current market prices).  There is nothing wrong with this economically — as Roberts points out, carbon pricing is needed because of the colossal failure of markets to price in the global climate externalities of fossil fuels.

But what price would it take to achieve a 40% or 80% reduction in fossil fuel consumption?  In other words, what price for a gallon of gas would get American consumers to consume 80% less of it? Public discussions of carbon pricing don’t usually put a number to it. Bernie Sanders certainly doesn’t say how much of a carbon tax he would propose.

The only study I have been able to find was produced by the National Association of Manufacturers, so take it with a grain of salt. But the NAM study concludes that a 40% reduction in carbon emissions would require a $100 per ton carbon tax, while an 80% reduction would require a $1,000 per ton carbon tax.  According to the study, that would correlate to about $15 per gallon for gasoline. Despite the biases of the source, that sounds about right to me — gasoline demand is highly inelastic. Fifteen dollar gas is probably what it would take to get us to stop burning the stuff. For the record, I am firmly in favor of $15 a gallon gasoline, and 2050 is way too late — we will need that level of incentive by 2030 or so at current carbon emissions rates.

Fifteen dollar gas by 2050 does not sound like a Presidential platform, even among the climate activist wing of the Democratic party. Cap-and-trade, even if it gets put back on the table, would lead to the same price point for an 80% reduction.  Which is why I think these debates about carbon pricing, cap-and-trade, and taxes makes for interesting discussions among academics and policy wonks, but is just not going to happen politically until climate change is way beyond policy debates about economic tools. At that point, we are just going to have to ban the stuff, or continue to suffer the consequences.

I do find the idea of a carbon tax return intriguing, however.  Encouraging people to take a look, once a year, at their carbon emissions might have a bigger impact on reducing those emissions than the actual tax. I totaled my emissions for 2015 using the calculator at CarbonFootprint.org. My personal goal is to live a comfortable life with a carbon footprint of less than four tons CO2E per year – about an 80% reduction from the average US individual carbon footprint.  I am blogging about this on my personal blog.

Here’s the result from CarbonFootprint.org:

For 2015, I met my goal comfortably despite some international travel and plenty of life enrichment.

But, carbon taxes would be collected upstream of the consumer, so we can’t look forward to (or dread)  the forced introspection of an individual carbon tax return . . .

Pace Law School’s Land Use Law Center and the Yale School of Forestry and Environmental Studies (F&ES) are collaborating to identify the distinctly local impacts of hydraulic fracturing and how local governments can respond where they are not satisfied that federal and state regulations properly mitigate these local effects.  The attached guest blog by Christopher Halfnight, F&ES ’15, reports that this joint research team is “building a suite of tools to empower local government decision-making on a range of shale-related local governance challenges. The project’s stakeholder workshops and research to date have helped fashion the first significant resource in that toolkit: a comprehensive impacts framework cataloguing the potential local effects from shale oil and gas development. The research team developed this framework of fracking impacts to help orient communities to potential risks and benefits of shale development. The framework represents a major new resource to provide both a significant knowledge base for local government decision-making and a substantive legal foundation for regulatory and non-regulatory actions.” The full blog is here: http://environment.yale.edu/envirocenter/post/cataloguing-impacts-of-the-shale-boom-a-foundation-for-local-governance/

As we approach zoning’s centennial in 2016, the Land Use Law Center at Pace Law School is examining what is durable and what is deficient in land use regulation today.   As times change, zoning must renew itself by adjusting to changing conditions. Among the many challenges it faces at the dawn of its second century, is the alarming water scarcity experienced by arid Western states with fast-growing economies. The Center is working with Western Resource Advocates (WRA) to train local land and water planners in the front range of the Rocky Mountains how to coordinate water and land planning, particularly how “zone in,” that is to permit and encourage,  water conserving land use patterns, buildings, and landscapes.  The following text is adapted from a technical guidance manual that the Center is preparing for WRA on this challenging topic.

 Zoning Strategies for Water Conservation

 Since zoning should conform to the local comprehensive plan, such plans in water scarce communities must endorse permitting water-efficient land uses in development zones, discouraging water-consumptive developments in conservation zones, and regulating all new development to create landscapes that conserve water. The critical task for the comprehensive plan is to delineate priority growth districts within the community where more water-efficient forms of development should occur and conservation areas where development should be shaped to discourage and minimize water use.

 Large lot, low-density, and dispersed development increases water use per household, in some cases by over 100 gallons per household per day. Nationwide, lawn care alone accounts for an average of 50 percent of household water use and large-lot, single-family zoning yields large lawns.  In arid areas where rapid population growth is occurring, there is simply not enough water to sustain the level of water use created by this type of zoning, which in many communities predominates. By prescribing mixed-use, compact, higher-density development in priority growth districts, zoning sets the stage for significant water savings through a strategy of water-smart growth.

 Additional benefits of concentrating development in priority growth districts include:

  • These types of denser developments create a smaller urban footprint per household, which reduces impervious surfaces and surface water runoff, limiting flooding and minimizing the pollution of lakes, rivers, and streams and groundwater.
  • More compact development also allows for shorter water transmission systems, lessening the cost of water and sewer infrastructure, reducing leak loss potential, and reducing energy needs for pumping and pressurization.
  • This development pattern, when focused on filling in already developed areas,  leverages ratepayers’ investment in existing water delivery systems and other infrastructure.
  • Higher-density and mixed use development can be designed to increase walkability, lessen car dependency, save transportation costs, and lower air pollution.
  • Such development accommodates changing demographics with a higher percentage of smaller, more urban-oriented households who are not interested in large-lot, single-family living and whose interest in mixed-use, transit oriented, walkable and livable urban neighborhoods is increasing real property values in areas that, coincidentally, are zoned to conserve water.

 Zoning Options

There are three options for communities to consider for approving these water conserving land uses in designated zoning districts:

1. As-of-right uses: Traditionally, zoning districts permit certain land uses as of right; uses that cannot be denied unless they fail to meet standards contained in the zoning ordinance for each zone. In priority growth districts, zoning can be adopted that permits as-of-right several types of land uses that achieve water conservation: higher density, single-family homes on small lots, attached town houses, small-scale and large-scale multi-family housing, and mixed-use developments.

2. Conditional uses: Zoning also traditionally singles out some land uses that are allowed in designated zoning districts on the condition that they are compatible with the surrounding neighborhood; these are called conditional uses and permitted by the issuance of a special use permit. Any of these water-conserving land uses can be designated conditional uses and allowed, subject to more intense planning commission review and the imposition of conditions that ensure that they are appropriate in the neighborhood.  In existing single-family neighborhoods, for example, small lot attached homes or small multi-family housing can be permitted as conditional uses, which gives the planning commission an opportunity to review each project more carefully and to impose specific conditions to mitigate any adverse impact of the project on the surrounding neighborhood.

3. Flexible zoning techniques: Where even more care must be taken in rezoning areas, there are several other zoning options to consider that provide great flexibility in fostering water conserving land use patterns:

  • rezoning governed by development agreements,
  • planned unit development zoning,
  • floating zoning,
  • cluster development,
  • bonus density zoning,
  • overlay zoning, and
  • zoning that prescribes landscaping features that greatly reduce water use.

Which of these options should be chosen depends on a number of factors, including the current land use pattern and types of buildings in the community. The pattern of development fostered and types of buildings allowed by zoning must respect the current architecture and land development of the community and build gradually from that base.  The biggest factors to consider in permitting new development are density, the utilization of present infrastructure, and the cost of needed additional infrastructure. Local decision-makers can be very flexible on building architecture and types, but greater density is the key to water-conserving zoning.


As climate negotiators prepare for their discussions in Lima, they must focus on one of the most neglected strategies for mitigating and adapting to climate change: creating sustainable human settlements. My work for a land use law center embedded in a law school with a prominent environmental law program makes the lack of awareness and embrace of a land use law policy for climate change mitigation and adaptation, at best, baffling and, at worst, inexcusable. Despite decades of research, development, and successful implementation, this strategy is “new” in the eyes of the IPCC.

The recently released Fifth Assessment Report of the IPCC, for the first time, contains a chapter on human settlement. Chapter 12, Human Settlements, Infrastructure and Spatial Planning, is contained in Working Group III’s volume on mitigation. Scattered throughout the two volume report of Working Group II, Impacts, Adaptation, and Vulnerability, are insights regarding the susceptibility of human settlements to the consequences of climate change and their ability to plan for them and become climate change resilient.

The good news is that Chapter 12 finally recognizes that “cities in developed countries have lower per capita energy use and GHG emissions than the national average;” that the key drivers of emissions “are density, land use mix, connectivity, and accessibility;” and that “key mitigation strategies include co-locating high residential with high employment densities, achieving high land use mixes, increasing accessibility and investing in public transit.”

The bad news is that the IPCC report admits that “there is little scientific understanding of the magnitude of the emissions reduction from altering urban form and the emissions savings from integrated infrastructure and land use planning;” and, perhaps most lamentably, that “there is a lack of scientific understanding of how cities can prioritize mitigation strategies, local actions, investments, and policy responses that are locally relevant.”

In the run up to the critical Conference of the Parties in Paris next year, participating countries are charged with committing to cutting emissions at a level they can achieve, in keeping with political and economic realities.  While a carbon tax, or cap and trade strategy, might be more attractive, there is little doubt that most such top-down approaches are not politically realistic in the U.S.  The same cannot be said for sustainable human settlement strategies, which if properly presented, can gain bipartisan support at the local, state, and federal level.  Focusing on local responses to increasingly apparent consequences of climate change can completely change the nature of the climate conversation from belligerently negative to positive.

Professor Dan Kahan of Yale Law School, in describing the progress made in creating an agreement regarding climate action in Southeast Florida, notes that inter-municipal negotiations about sustainable settlement strategies put “a different question from the one put in the national climate change debate. The latter forces Southeast Floridians, like everyone else, to express ‘who they are, whose side they are on.’ In contrast, the decision-making [at the local level] is effectively, and insistently, testing what they know about how to live in a region that faces a serious climate problem.”

What we know at the local level is considerable, despite the lack of awareness confessed in Chapter 12.  We know, for example, that land use strategies can reduce future CO2 emissions by up to 20% through compact, mixed-use urban development near transit, and also that they can increase biological sequestration through open space requirements contained in local land use plans and regulations. Open space currently sequesters between 15-18% of CO2 in the U.S. and that number can be increased through intelligent local policies aided by state and federal initiatives. That land trusts in the Northeast are creating sequestration off-set projects that can be sold in California to secure funds to promote additional sequestration is a good example of how a national strategy could be designed to greatly increase sequestration in mitigation of climate change.

How much we know is on display this week at the Land Use Law Center’s annual conference at Pace Law School in White Plains. It features successful strategies to achieve mitigation or adaptation through innovative environmental impact review, constructing green infrastructure,  revitalizing deteriorated main streets, rezoning to facilitate and lower the cost of renewable energy facilities, enhancing biological sequestration, innovative transit oriented development regulations, sustainable neighborhood development standards, planning for resilient communities, creating no-build zones, despite the interdiction of Lucas, siting affordable housing near jobs, transit, and services, and a dozen case studies of successful sustainable development projects at the local level.

Perhaps the lack of awareness of these promising mitigation and adaptation strategies is due to the intuitive notion that one, a few, several, or even hundreds, of local initiatives cannot deal effectively with the huge challenge of emissions reductions. So many embrace silver bullet international agreements or national strategies that could work, despite decades of frustrated attempts to implement top-down approaches.  Missing from this analysis is that local strategies do work, and while they work only within their parochial jurisdictions, they can have powerful impacts if they are guided, supported, and connected by intelligent state and federal efforts.

What is intuitive here is that creating sustainable settlements is a strategy that has a fighting chance of being politically and economically realistic.  Readjusting the intuitive instincts that guide negotiators on the road to Paris could pay off as a next step for managing climate change.


Daniel E. Estrin, Supervising Attorney, Pace Environmental Litigation Clinic
Adjunct Professor of Law, Pace Law School


For the second time in four years, Pace Environmental Litigation Clinic’s clients have caught Frasure Creek Mining, LLC in the act of submitting false information to government agencies on numerous quarterly discharge monitoring reports associated with pollutant discharges from its mountaintop removal coal mines in eastern Kentucky.

For more information about the thousands of violations of the Clean Water Act on which the Clinic and its co-counsel served noticed on Friday, November 14, 2014, here are links to our Notice of Intent to Sue and the Press Release prepared by our clients, Appalachian Voices, Waterkeeper Alliance, Kentuckians for the Commonwealth and Kentucky Riverkeeper.

Check out Appalachian Voices’ Flickr page for photos of discharges from some of Frasure Creek’s coal mines.

We’ll continue to update this post with links to articles/press coverage regarding our notice of intent to sue to enforce these violations of federal law.


Environmental Groups to File Federal Suit Against Frasure Creek Mining (Ronnie Ellis, CNHI, Frankfurt, KY)

Clean Mining a Deception in Kentucky, Groups Say (Michael Wines, New York Times)

Groups Again Allege Kentucky Mining Company Falsified Pollution Records (Erica Peterson, NPR/WFPL News, Louisville, KY)

Environmental groups accuse Kentucky coal company of resuming falsified pollution reports (Bill Estep, Herald-Leader, Lexington, KY)

Greens Threaten Ky. Mining Co. Over CWA Reports (David Siegel, LAW360)

Groups allege 28,000 mining violations, lax enforcement (James Bruggers, The Courier-Journal, Louisville, KY)

Groups say Ky. mine filing false reports again (Associated Press, Lexington, KY)


Same coal company, same old (illegal) tricks (Eric Chance, Appalachian Voices)

Groups Take Legal Action Against Coal Company for Falsifying Water Pollution Reports (Anastasia Pantsios, Ecowatch)

Kentucky Coal Company Falsified Water Pollution Reports, Environmental Group Alleges (Katie Valentine, ThinkProgress.org)



Municipalities across the nation are incorporating natural resource preservation principles into their zoning ordinances. They are not doing so uniformly, but their collective progress is impressive. Some local legislatures describe the protection of the natural environment as a specific purpose of zoning. Localities may protect open space in zoning districts by adjusting applicable density, lot size, and setback restrictions. For example, conservation zoning districts permit only private land uses that are compatible with the natural environment, while agricultural zoning districts preserve agricultural land for farming purposes and open space.  To read more click: http://lawprofessors.typepad.com/land_use/2014/10/using-zoning-to-protect-the-environment-an-excerpt-from-protecting-the-environment-through-land-use-.html.

Land Use Climate Bubbles are emerging in every region of the country that should rivet the attention of policy makers. In numerous communities, property values are declining because of repeated flooding, continued threats of storm surges, sustained high temperatures, constant fear of wildfires, the lack of water in residential, commercial, and agricultural areas, and real concerns with mudslides in vulnerable areas. This persuasive evidence that local economic bubbles are forming is reinforced by a variety of recent and persuasive reports at the national and international level.  To read on click: http://lawprofessors.typepad.com/land_use/2014/10/costs-and-consequences-of-climate-change-land-use-climate-change-bubbles-part-ii.html.

Sidney is in retreat. Situated next to the Susquehanna River in the Catskill Mountains of New York, the village was built on a floodplain on the south side of the river. In 2006, Sidney was hit by a record-breaking storm that dropped 14 inches of rain over the upper Susquehanna Basin. The village suffered major damage to multiple structures in its extensive flood prone areas, including the main street business district and adjacent residential neighborhoods. The community, of course, focused on rebuilding because the flood was thought to be a one in one hundred year event and that it would not likely happen again. Just five years later, Tropical Storm Lee hit the village, causing widespread structural damage in the floodplain. Things in this community then changed. To read more click http://lawprofessors.typepad.com/land_use/2014/10/the-remarkable-case-of-sidney-new-york.html.

Protecting the Environment Through Land Use Law: Standing Ground, starts with this quote from Emerson, “All of my best thoughts were stolen by the ancients.” The quote introduces Chapter One of this book, which is entitled The Long Arch of Local Environmental Law, illustrating that law has been employed for centuries to balance land development and natural resource protection. The chapter begins with this background: http://lawprofessors.typepad.com/land_use/2014/10/protecting-the-environment-through-land-use-law-standing-ground.html 


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