The one percent problem

Columbia Law Review

Volumn 111, Issue 7, 2011, Pages 1385-1443

  Stack, Kevin M ^a   Vandenbergh, Michael P ^a  

^a VANDERBILT UNIVERSITY LAW SCHOOL   (United States)

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EID: 81455135048     PISSN: 00101958     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (279)

1. See, e.g., United States v. Kramer, 757 F. Supp. 397, 423 (D.N.J. 1991) (striking "de minimis" defense to Superfund claim).
2. See, e.g., Consumer Protection Provisions in Climate Legislation: Hearing Before Subcomm. on Energy & Env't of the H. Comm. on Energy and Commerce, 111th Cong. 87 (Mar. 12, 2009), available at http://www.umc-gbcs.org/ (on file with the Columbia Law Review) (statement of John S. Hill, Director for Environmental Justice, United Methodist Church) ("Those least responsible... are most vulnerable to its effects. Let us not perpetuate further this injustice by forcing those same individuals to shoulder additional and disproportionate costs of proposed solutions.").
3. See, e.g., Letter from James C. May, President and CEO, Air Transp. Ass'n of Am., to Todd Stern, Special Envoy for Climate Change, U.S. Dep't of State (Oct. 29, 2009), available at http://airlines.org/PublicPolicy/ATALetters/Pages/letters_10-29-09.aspx (on file with the Columbia Law Review) (noting "U.S. airlines account for less than 2 percent of the U.S. GHG inventory").
4. See, e.g., 1 Minerals Mgmt. Serv., U.S. Dep't of the Interior, Gulf of Mexico OCS Oil and Gas Lease Sales: 2007-2012, at xiii (2006), available at http://www.gomr.boemre. gov/PDFs/2006/2006-062-Vol1.pdf (on file with the Columbia Law Review) ("The effect of proposed-action-related oil spills... is expected to cause less than a 1 percent decrease in... standing stocks of any population, commercial fishing efforts, landings, or value of those landings.").
5. See, e.g., Final Rule on International Fisheries Regulations, 74 Fed. Reg. 65,460, 65,463 (Dec. 10, 2009) (to be codified at 50 C.F.R. pts. 300, 665) ("Multilateral action is essential to ensure that overfishing of bigeye tuna in the Pacific Ocean ends, although U.S. fisheries comprise a very small portion of Pacific-wide bigeye tuna harvests (less than 3 percent in 2004). ").
6. See, e.g., Massachusetts v. EPA, 549 U.S. 497, 544 (2007) (Roberts, C.J., dissenting) (concluding "petitioners' desired emission standards might reduce only a fraction of 4 percent of global emissions").
7. We use the term one percent as a shorthand for relatively small shares including those slightly above and far below one percent.
8. Describing exemptions from regulatory compliance for those whose contributions to regulated issue appear to be relatively insignificant.
9. The maxim de minimis non curat lex, "[t]he law does not concern itself with trifles, " Black's Law Dictionary 496 (9th ed. 2009), applies at common law to deny liability for very small injuries. See, e.g., F.A.D. Andrea, Inc. v. Dodge, 15 F.2d 1003, 1005 (3d Cir. 1926) ("It is the growing policy of the law not to take notice of trifling matters. 'De minimis non curat lex' is a maxim which has greater force to-day than ever. ").
10. Fullam v. Stearns, 30 Vt. 443, 455 (1857) ("The maxim 'de minimis non curat lex,' I apprehend, whenever it is applied correctly to take away a right of recovery, has reference to the injury, and not to the resulting damage. "). The Supreme Court has embraced de minimis as a default rule of construction, applicable to statutory claims absent a clear statement to the contrary: "[T]he venerable maxim de minimis non curat lex... is part of the established background of legal principles against which all enactments are adopted, and which all enactments (absent contrary indication) are deemed to accept. " Wis. Dep't of Revenue v. William Wrigley, Jr., Co., 505 U.S. 214, 231 (1992). We discuss how de minimis risk thresholds differ from the one percent problem below. See we describe the weaker form of the one percent problem in Part I. A, and distinguish it from the stronger form, which is our central concern.
11. Discussing behavioral anomalies regarding perception of small numbers and probabilities.
12. 2-e).
13. Piers Forster et al., Intergovernmental Panel on Climate Change, Changes in Atmospheric Constituents and in Radiative Forcing, in Climate Change 2007: The Physical Science Basis 131, 137-43 (Susan Solomon et al. eds., 2007), available at http://www.ipcc.ch/publications_ and_data/ar4/wg1/en/contents.html (on file with the Columbia Law Review).
14. 2-e).
15. 2-e).
16. See H. Damon Matthews et al., The Proportionality of Global Warming to Cumulative Carbon Emissions, 459 Nature 829, 829-30 (2009) (analyzing relationship between carbon emissions and global warming). For a discussion of the implications of the Matthews et al. study.
17. see Carbon Emissions Linked to Global Warming in Simple Linear Relationship, ScienceDaily (June 11, 2009), http://www.sciencedaily.com/releases/2009/ 06/090610154453.htm (on file with the Columbia Law Review) ("These findings mean that we can now say: if you emit that tonne of carbon dioxide, it will lead to 0.0000000000015 degrees of global temperature change.").
18. See, e.g., Thomas Dietz, Gerald T. Gardner, Jonathan Gilligan, Paul C. Stern & Michael P. Vandenbergh, Household Actions Can Provide a Behavioral Wedge to Rapidly Reduce U.S. Carbon Emissions, 106 Proc. Nat'l Acad. Sci. U.S. 18,452, 18,452-53 (2009) (demonstrating how behavioral wedge of carbon emissions reductions can be achieved by U.S. households).
19. Michael P. Vandenbergh & Anne C. Steinemann, The Carbon-Neutral Individual, 82 N.Y.U. L. Rev. 1673, 1709-28 (2007) [hereinafter Vandenbergh & Steinemann, Carbon-Neutral] (proposing norms-based strategies for household emissions reductions).
20. We discuss the possibility of avoiding climate tipping points, but we recognize that it may not be possible to avoid crossing one or more tipping points at this late date. See generally Jody Freeman & Andrew Guzman, Climate Change and U.S. Interests, 109 Colum. L. Rev. 1531 (2009) (discussing modeling of catastrophic climate change).
21. Pub. L. No. 111-5, 123 Stat. 115 (2009) (to be codified in scattered titles of U.S.C.).
22. See text accompanying 161-167 (noting net effects of stimulus bill on carbon emissions).
23. See, e.g., 2 U.S.C. § 653(1) (2006) (requiring Congressional Budget Office (CBO)'s estimate of bills' cost to be included in committee reports when practicable).
24. For a discussion characterizing congressional budget rules as "[t]he most influential and ubiquitous procedural framework" for information disclosure in Congress, see Elizabeth Garrett & Adrian Vermeule, Institutional Design of a Thayerian Congress, 50 Duke L.J. 1277, 1307 (2001).
25. The current PAYGO legislation is the Statutory Pay-As-You-Go Act of 2010, Pub. L. No. 111-139, 124 Stat. 8 (to be codified in scattered sections of 2 U.S.C.) which we discuss below. See generally Part IV.C.1 (providing account of pay-as-you-go budgeting).
26. For a discussion of the effects of offset requirements on fiscal issues, see Elizabeth Garrett, Harnessing Politics: The Dynamics of Offset Requirements in the Tax Legislative Process, 65 U. Chi. L. Rev. 501, 515-43 (1998) [hereinafter Garrett, Harnessing]. For examples of other legislative and executive precommitment climate strategies.
27. see Richard J. Lazarus, Super Wicked Problems and Climate Change: Restraining the Present to Liberate the Future, 94 Cornell L. Rev. 1153, 1205-31 (2009).
28. see also J.B. Ruhl & James Salzman, Climate Change, Dead Zones, and Massive Problems in the Administrative State: A Guide for Whittling Away, 98 Calif. L. Rev. 59, 94-98 (2010) [hereinafter Ruhl & Salzman, Climate Change] (identifying administrative strategies for addressing climate change).
29. David A. Super, From the Greenhouse to the Poorhouse: Carbon-Emissions Control and the Rules of Legislative Joinder, 158 U. Pa. L. Rev. 1093, 1121-43, 1157-96 (2010) (proposing legislative tools for regulating carbon emissions).
30. Michael P. Vandenbergh & Anne C. Steinemann, The Carbon-Neutral Individual, 82 N.Y.U. L. Rev. 1673, 1709-28 (2007) [hereinafter Vandenbergh & Steinemann, Carbon-Neutral] (proposing norms-based strategies for household emissions reductions) at 1717-22 (noting individuals may be unable to determine effects of their efforts to reduce carbon emissions on overall climate problem but can be confident they are not contributing to problem if they have no net emissions).
31. For a review of emissions targets, see Michael P. Vandenbergh, Brooke A. Ackerly & Fred E. Forster, Micro-Offsets and Macro-Transformation: An Inconvenient View of Climate Change Justice, 33 Harv. Envtl. L. Rev. 303, 315-17 (2009) [hereinafter Vandenbergh et al., Micro-Offsets].
32. For a review of emissions targets, see Michael P. Vandenbergh, Brooke A. Ackerly & Fred E. Forster, Micro-Offsets and Macro-Transformation: An Inconvenient View of Climate Change Justice, 33 Harv. Envtl. L. Rev. 303, 315-17 (2009) [hereinafter Vandenbergh et al., Micro-Offsets].
33. see also Jonathan B. Wiener, Think Globally, Act Globally: The Limits of Local Climate Policies, 155 U. Pa. L. Rev. 1961, 1977 (2007) (discussing global targets and difficulty of achieving international agreement).
34. 2.
35. 15 U.S.C. § 77c(b) (2006).
36. 17 C.F.R. § 230.504(b)(2) (2011).
37. 15 U.S.C. § 77e.
38. Securities Act Release No. 6339, [1981-1982 Transfer Binder] Fed. Sec. L. Rep. (CCH) ¶ 83,014, at 84,457 (Aug. 7, 1981).
39. C. Steven Bradford, Transaction Exemptions in the Securities Act of 1933: An Economic Analysis, 45 Emory L.J. 591, 602-14 (1996).
40. See Mark A. Sargent, The New Regulation D: Deregulation, Federalism and the Dynamics of Regulatory Reform, 68 Wash. U. L.Q. 225, 279-81 (1990) (describing Rule 504 as intended to reduce small entities' compliance costs). The exemption from federal regulation does not, however, mean that these issuances are free of all regulatory burdens.
41. They still must comply with state securities laws.
42. 42 U.S.C. §§ 9601-9675 (2006).
43. See, e.g., B.F. Goodrich Co. v. Murtha, 754 F. Supp. 960, 968-72 (D. Conn. 1991) (discussing liability for municipal garbage).
44. See, e.g., Carol Dinkins, Settlement Issues in Federal Enforcement Actions 4 (June 2005) (unpublished manuscript), available at http://www.velaw.com/uploadedFiles/VE site/Overview/Dinkins_Settlement_Issues.pdf (on file with the Columbia Law Review) (discussing possibility of "negotiation transaction costs... exceed[ing]... actual liability").
45. See 42 U.S.C. § 9622(g) (authorizing de minimis settlements).
46. see also Superfund Program.
47. Revised Model De Minimis Contributor Consent Decree and Administrative Order on Consent, 60 Fed. Reg. 62,849, 62,853 (Dec. 7, 1995) (suggesting model consent decree with contribution protection clause).
48. See Bruce Diamond, Dir., Office of Waste Programs Enforcement & William White, Enforcement Counsel for Superfund Office, Office of Enforcement, OSWER Directive 9834.7-1D, Streamlined Approach for Settlements with De Minimis Waste Contributors Under CERCLA Section 122(g)(1)(A), at 2 & n.5, 3 (July 30, 1993), available at http://www.epa.gov/compliance/resources/policies/cleanup/superfund/appdeminimis-rpt.pdf (on file with the Columbia Law Review) (noting EPA required no "set percentage" for de minimis settlements, but that median amount of waste contributed was one percent).
49. 42 U.S.C. § 9607(o) (creating "de micromis exception" to CERCLA liability).
50. 2 U.S.C. § 1601 (2006).
51. 42 U.S.C. § 1603(a)(1).
52. 42 U.S.C. § 1603(a)(3)(A).
53. 42 U.S.C. § 1603(a)(3)(A).
54. 6 C.F.R. § 27.204(a)(1) (2011) (excluding toxic release of chemical in concentration of less than 1% of mixture by weight from quantification requirements applicable in facility-based screening). 29 C.F.R. § 1926.1101(k)(8)(vi)(B) (2011) (exempting labeling of products containing asbestos if they contain less than 1% concentrations).
55. It is important to distinguish one percent problems and the concept of de minimis risk used in regulation. De minimis risk is a threshold "below which we would be indifferent to changes in the level of risk, " and as a consequence the risk is excluded from inquiry and regulation. Joseph Fiksel, De Minimis Risk: From Concept to Practice, in De Minimis Risk 3, 4 (Chris Whipple ed., 1987).
56. see also Joshua Menkes & R. Scott Frey, De Minimis Risk as a Regulatory Tool, in De Minimis Risk, F.A.D. Andrea, Inc. v. Dodge, 15 F.2d 1003, 1005 (3d Cir. 1926) ("It is the growing policy of the law not to take notice of trifling matters. 'De minimis non curat lex' is a maxim which has greater force to-day than ever. "), 9. There is no necessary connection between a one percent problem and a de minimis risk threshold. A de minimis risk threshold pertains to levels of harm. In contrast, the one percent problem describes a particular type of regulatory failure resulting from the exclusion of many small contributors. Important instances of one percent problems, like climate change policy, concern risks that are not de miminis. The closest point of connection between de minimis risks and the one percent problem is that the one percent problem results from acceptance of many individual contributors' claims that their contributions are so small as to not merit regulation, or "de minimis, " when in the aggregate those contributions pose nontrivial risks.
57. Eric R. Stone, J. Frank Yates & Andrew M. Parker, Risk Communication: Absolute Versus Relative Expressions of Low-Probability Risks, 60 Organizational Behav. & Hum. Decision Processes 387, 387 (1994).
58. See Cass R. Sunstein, Probability Neglect: Emotions, Worst Cases, and Law, 112 Yale L.J. 61, 70 (2002) [hereinafter Sunstein, Probability Neglect] (noting many studies show insensitivities to variations in low probabilities).
59. Cass R. Sunstein, Terrorism and Probability Neglect, 26 J. Risk & Uncertainty 121, 123 (2003) [hereinafter Sunstein, Terrorism] ("It is... well known that people are insensitive to variations in low probabilities. ").
60. Howard Kunreuther, Nathan Novemsky & Daniel Kahneman, Making Low Probabilities Useful, 23 J. Risk & Uncertainty 103, 107-08 (2001) [hereinafter Kunreuther et al., Low Probabilities]. De minimis risk thresholds themselves raise a host of theoretical and practical problems.
61. See Matthew D. Adler, Why De Minimis? 30-31 (Inst. for Law & Econ., Univ. Pa. Law Sch., Research Paper No. 07-12, 2007), available at http://ssrn.com/ abstract=992878 (on file with the Columbia Law Review) (arguing de minimis risk criteria are not justified in ideal moral theory, and are justified, if at all, only on nonideal grounds such as bounded rationality of government actors).
62. Howard Kunreuther, Nathan Novemsky & Daniel Kahneman, Making Low Probabilities Useful, 23 J. Risk & Uncertainty (2001) [hereinafter Kunreuther et al., Low Probabilities]. De minimis risk thresholds themselves raise a host of theoretical and practical problems., at 108-09.
63. Howard Kunreuther, Nathan Novemsky & Daniel Kahneman, Making Low Probabilities Useful, 23 J. Risk & Uncertainty (2001) [hereinafter Kunreuther et al., Low Probabilities]. De minimis risk thresholds themselves raise a host of theoretical and practical problems., at 106.
64. Howard Kunreuther, Nathan Novemsky & Daniel Kahneman, Making Low Probabilities Useful, 23 J. Risk & Uncertainty (2001) [hereinafter Kunreuther et al., Low Probabilities]. De minimis risk thresholds themselves raise a host of theoretical and practical problems., at 107-08.
65. Howard Kunreuther, Nathan Novemsky & Daniel Kahneman, Making Low Probabilities Useful, 23 J. Risk & Uncertainty (2001) [hereinafter Kunreuther et al., Low Probabilities]. De minimis risk thresholds themselves raise a host of theoretical and practical problems., at 109.
66. Howard Kunreuther, Nathan Novemsky & Daniel Kahneman, Making Low Probabilities Useful, 23 J. Risk & Uncertainty (2001) [hereinafter Kunreuther et al., Low Probabilities]. De minimis risk thresholds themselves raise a host of theoretical and practical problems., at 108-09.
67. Cass R. Sunstein, Terrorism and Probability Neglect, 26 J. Risk & Uncertainty 121, 123 (2003) [hereinafter Sunstein, Terrorism] ("It is... well known that people are insensitive to variations in low probabilities. ").
68. Young Sook Eom, Pesticide Residue Risk and Food Safety Valuation: A Random Utility Approach, 76 Am. J. Agric. Econ. 760, 764, 769 (1994) ("The price premium [for safer produce] was insensitive to the amounts of risk reduction evaluated. ").
69. C.-T. Jordan Lin & J. Walter Milon, Contingent Valuation of Health Risk Reductions for Shellfish Products, in Valuing Food Safety and Nutrition 83, 90-93 (Julie A. Caswell ed., 1995).
70. See, e.g., Michael W. Jones-Lee, Graham Loomes & P.R. Philips, Valuing the Prevention of Non-Fatal Road Injuries: Contingent Valuation vs. Standard Gambles, 47 Oxford Econ. Papers 676, 688-89 (1995) (showing willingness to pay only 20% more to reduce risk from 12 in 100,000 to 4 in 100,000).
71. See Cass R. Sunstein, Probability Neglect: Emotions, Worst Cases, and Law, 112 Yale L.J. 61, 70 (2002) [hereinafter Sunstein, Probability Neglect] (noting many studies show insensitivities to variations in low probabilities).
72. Eric R. Stone, J. Frank Yates & Andrew M. Parker, Risk Communication: Absolute Versus Relative Expressions of Low-Probability Risks, 60 Organizational Behav. & Hum. Decision Processes 395 (1994).
73. Eric R. Stone, J. Frank Yates & Andrew M. Parker, Risk Communication: Absolute Versus Relative Expressions of Low-Probability Risks, 60 Organizational Behav. & Hum. Decision Processes 395 (1994).
74. See Wesley A. Magat, W. Kip Viscusi & Joel Huber, Risk-Dollar Tradeoffs, Risk Perceptions, and Consumer Behavior, in Learning about Risk: Consumer and Worker Responses to Hazard Information 83, 91 (W. Kip Viscusi et al. eds., 1987) (noting study participants "tend either to overreact to the risky event or to ignore it").
75. Gary H. McClelland, William D. Schulze & Don L. Coursey, Insurance for Low-Probability Hazards: A Bimodal Response to Unlikely Events, 7 J. Risk & Uncertainty 95, 108-09 (1993) (finding bimodal response).
76. See, e.g., Howard Kunreuther et al., Disaster Insurance Protection: Public Policy Lessons 185-86 (1978) ("[P]eople refuse to attend to or worry about losses whose probability is below some threshold.... Probabilities below the threshold are essentially treated as zero. ").
77. See Sarah Lichtenstein et al., Judged Frequency of Lethal Events, 4 J. Experimental Psychol. 551, 552 (1978) ("Rare events may be overestimated because their appearances are well spread and distinct. ").
78. See Wesley A. Magat, W. Kip Viscusi & Joel Huber, Risk-Dollar Tradeoffs, Risk Perceptions, and Consumer Behavior, in Learning about Risk: Consumer and Worker Responses to Hazard Information 96 (W. Kip Viscusi et al. eds., 1987) (noting study participants "tend either to overreact to the risky event or to ignore it").
79. M. Granger Morgan et al., On Judging the Frequency of Lethal Events: A Replication, 3 Risk Analysis 11, 11 (1983) ("The results, which have been widely reproduced in the riskperception literature, show a tendency... to overestimate the incidence of rare causes of death. ").
80. See George F. Loewenstein et al., Risk as Feelings, 127 Psychol. Bull. 267, 274 (2001) (showing emotional reactions to risk diverge from cognitive assessments).
81. See Paul Slovic, The Perception of Risk 14 (2000) (finding individuals' choices to insure are greatly affected by recent experiences, such as with floods and earthquakes).
82. See Paul Slovic, John Monahan & Donald C. MacGregor, Violence Risk Assessment and Risk Communication, 24 Law & Hum. Behav. 271, 290 (2000) (attributing greater response to risk in frequency format (e.g., "1 in 10") than probability format (e.g., "10%").
83. Eric R. Stone, J. Frank Yates & Andrew M. Parker, Risk Communication: Absolute Versus Relative Expressions of Low-Probability Risks, 60 Organizational Behav. & Hum. Decision Processes 395 (1994).
84. Paul Slovic et al., Preference for Insuring Against Probable Small Losses: Insurance Implications, 44 J. Risk & Ins. 237 (1977).
85. Paul Slovic et al., Preference for Insuring Against Probable Small Losses: Insurance Implications, 44 J. Risk & Ins. 243 (1977).
86. Eric R. Stone, J. Frank Yates & Andrew M. Parker, Risk Communication: Absolute Versus Relative Expressions of Low-Probability Risks, 60 Organizational Behav. & Hum. Decision Processes 401 (1994).
87. Cf. Amos Tversky & Daniel Kahneman, Belief in the Law of Small Numbers, 76 Psychol. Bull. 105, 110 (1974) (concluding psychologists are subject to behavioral anomalies regarding small numbers).
88. See Sci. Advisory Bd., Envtl. Prot. Agency, Reducing Risk: Setting Priorities and Strategies for Environmental Protection 12 (1990) ("Federal environmental laws are more reflective of public perceptions of risk than of scientific understanding. ").
89. Envtl. Prot. Agency, Unfinished Business: A Comparative Assessment of Environmental Problems 96 (1987) ("EPA's priorities appear more closely aligned with public opinion than with estimated risks. ").
90. The feedback effects in the Arctic arising from reduced albedo are the subject of debate in the scientific literature. See Steven C. Amstrup et al., Greenhouse Gas Mitigation Can Reduce Sea-Ice Loss and Increase Polar Bear Persistence, 468 Nature 955, 957-58 (2010) (discussing albedo effects of carbon mitigation on polar bear populations).
91. For a discussion of feedback effects, see Mark Lynas, Six Degrees: Our Future on a Hotter Planet (2008).
92. see also Working Grp. II, Intergovernmental Panel on Climate Change, Fourth Assessment Report: Summary for Policymakers 19 (M.L. Parry et al. eds., 2007) [hereinafter Summary for Policymakers], available at http://www.ipcc.ch/pdf/ assessment-report/ar4/wg2/ar4-wg2-spm.pdf (on file with the Columbia Law Review) (discussing feedback effects).
93. Jody Freeman & Andrew Guzman, Climate Change and U.S. Interests, 109 Colum. L. Rev. 1554 (2009) (discussing modeling of catastrophic climate change).
94. Jonathan S. Masur & Eric A. Posner, Climate Regulation and the Limits of Cost-Benefit Analysis, 99 Calif. L. Rev. (forthcoming 2011) (manuscript at 19, 23-24), available at http://ssrn.com/ abstract=1662147 (on file with the Columbia Law Review) (noting that leading models of climate policy costs and benefits "may be underestimating the probability of catastrophic events by significant margins" and thus understating benefits of emissions reductions).
95. See, e.g., Thomas Dietz, Gerald T. Gardner, Jonathan Gilligan, Paul C. Stern & Michael P. Vandenbergh, Household Actions Can Provide a Behavioral Wedge to Rapidly Reduce U.S. Carbon Emissions, 106 Proc. Nat'l Acad. Sci. U.S. 317-19 (2009) (demonstrating how behavioral wedge of carbon emissions reductions can be achieved by U.S. households).
96. Martin L. Weitzman, On Modeling and Interpreting the Economics of Catastrophic Climate Change, 91 Rev. Econ. & Stat. 1, 2 (2009) (examining how climate models fail to account for fat-tailed risks).
97. Martin L. Weitzman, A Review of the Stern Review on the Economics of Climate Change, 45 J. Econ. Literature 703, 704-05 (2007) ("[S]tandard approaches to climate change... fail to account fully for the implications of large consequences with small probabilities.... ").
98. Jonathan S. Masur & Eric A. Posner, Climate Regulation and the Limits of Cost-Benefit Analysis, 99 Calif. L. Rev. (forthcoming 2011) (manuscript at 19, 23-24), available at http://ssrn.com/ abstract=1662147 (on file with the Columbia Law Review) (noting that leading models of climate policy costs and benefits "may be underestimating the probability of catastrophic events by significant margins" and thus understating benefits of emissions reductions).
99. See Steven C. Sherwood & Matthew Huber, An Adaptability Limit to Climate Change Due to Heat Stress, 107 Proc. Nat'l Acad. Sci. U.S. 9552, 9552 (2010) ("[R]ecent estimates of the costs of unmitigated climate change are too low unless the range of possible warming can somehow be narrowed. ").
100. see also Anthony J. McMichael & Keith B.G. Dear, Climate Change: Health, Heat, and Longer Horizons, 107 Proc. Nat'l Acad. Sci. U.S. 9483, 9483-84 (2010) (commenting on Sherwood and Huber study).
101. See, e.g., Nicholas Stern, The Economics of Climate Change, 98 Am. Econ. Rev. 1, 5 tbl.1 (2008) (providing likelihoods of temperature increases based on studies conducted by Hadley Center and published in Stern Review). For a discussion of irreversible harms.
102. see generally Cass R. Sunstein, Irreversible and Catastrophic, 91 Cornell L. Rev. 841 (2006).
103. See Susan Solomon et al., Irreversible Climate Change Due to Carbon Dioxide Emissions, 106 Proc. Nat'l Acad. Sci. U.S. 1704, 1704 (2009) ("[T]he climate change that takes place due to increases in carbon dioxide concentration is largely irreversible for 1,000 years after emissions stop. ").
104. see also U.N. Human Development Report 2007/2008, Fighting Climate Change: Human Solidarity in a Divided World 26, 46 (2007) [hereinafter U.N. Development Report], available at http://hdr.undp.org/en/ media/HDR_20072008_EN_Complete.pdf (on file with the Columbia Law Review) (describing 2(C as "potential 'tipping point' for long-run catastrophic outcomes").
105. Working Grp. III, Intergovernmental Panel on Climate Change, Fourth Assessment Report: Summary for Policymakers 15 tbl.5 (2007), available at http:// www.ipcc.ch/pdf/assessment-report/ar4/wg3/ar4-wg3-spm.pdf (on file with the Columbia Law Review).
106. See, e.g., Nicholas Stern, The Economics of Climate Change, 98 Am. Econ. Rev. 1, 5 tbl.1 (2008) (providing likelihoods of temperature increases based on studies conducted by Hadley Center and published in Stern Review). For a discussion of irreversible harms.
107. 2 level exceeding ~450 ppm is almost surely dangerous, and the ceiling may be even lower. ").
108. 2 target of 350 ppm, to be reassessed as effects on ice sheet mass balance are observed, is suggested. ").
109. See S. Pacala & R. Socolow, Stabilization Wedges: Solving the Climate Problem for the Next 50 Years with Current Technologies, 305 Science 968, 968-69 (2004) (describing 2050 emissions projections and targets under business-as-usual trajectory, i.e., those "likely to occur in the absence of a focus on carbon").
110. See Roadmap to Copenhagen-Driving Towards Success: Hearing Before the H. Select Comm. on Energy Independence & Global Warming, 111th Cong. 9, 13 (2009) (statement of Todd Stern, Special Envoy for Climate Change, U.S. Department of State), available at http://globalwarming.house.gov/files/HRG/FullTranscripts/111-9_2009-09-10.pdf (on file with the Columbia Law Review) (noting "97 percent of the projected increase in global emissions between now and 2030 will come from developing countries, " which "tend to see a problem not of their own making that they are being asked to fix").
111. See, e.g., Cal. Exec. Order No. S-3-05 (June 1, 2005), available at http:// www.dot.ca.gov/hq/energy/ExecOrderS-3-05.htm (on file with the Columbia Law Review) (adopting California goal of 80% emissions reductions from 1990 levels by 2050).
112. 2 accumulation over the next 40-50 yr will persist globally for the next 500-2,000 yr or more. ").
113. See S. Pacala & R. Socolow, Stabilization Wedges: Solving the Climate Problem for the Next 50 Years with Current Technologies, 305 Science 968, 968-69 (2004) (describing 2050 emissions projections and targets under business-as-usual trajectory, i.e., those "likely to occur in the absence of a focus on carbon").
114. 2-e as a unit of measurement.
115. World Res. Inst., for this analysis, we treat a country as having 1% or less if its percentage would be rounded to 1% using standard rounding norms (i.e., if it is 1.49% or less of the global total).
116. Michael P. Vandenbergh & Anne C. Steinemann, The Carbon-Neutral Individual, 82 N.Y.U. L. Rev. 1673, 1709-28 (2007) [hereinafter Vandenbergh & Steinemann, Carbon-Neutral] (proposing norms-based strategies for household emissions reductions) at 1717-22 (noting individuals may be unable to determine effects of their efforts to reduce carbon emissions on overall climate problem but can be confident they are not contributing to problem if they have no net emissions).
117. 2 level exceeding ~450 ppm is almost surely dangerous, and the ceiling may be even lower. ").
118. See, e.g., Eric A. Posner & Cass R. Sunstein, Climate Change Justice, 96 Geo. L.J. 1565, 1611-12 (2008) (discussing carbon stocks and flows).
119. 2 accumulation over the next 40-50 yr will persist globally for the next 500-2,000 yr or more. ").
120. Figure based on data presented in Kevin A. Baumert, Timothy Herzog & Jonathan Pershing, Word Res. Inst., Navigating the Numbers: Greenhouse Gas Data and International Climate Policy 32 fig.6.1 (2005), available at http://pdf.wri.org/ navigating_numbers.pdf (on file with the Columbia Law Review).
121. 2-e emissions to the world's stocks.
122. Aviation Industry Pushes for Global Deal to Address Sector's Greenhouse Emissions, Int'l Env't Rep. (BNA), Sept. 29, 2010, at 954 (discussing views of industry executives that aviation accounts for 2% of global carbon dioxide emissions).
123. see also Aviation and the Environment: Emmissions [sic]: Hearing Before the Subcomm. on Aviation of the H. Comm. on Transp. & Infrastructure, 110th Cong. 92 (2008) (statement of Gerald Dillingham, Director, Physical Infrastructure Issues, U.S. Government Accountability Office) [hereinafter Dillingham statement] ("A 1999 study by the United Nations' Intergovernmental Panel on Climate Change (IPCC) estimated that global aircraft emissions generally accounted for approximately 3.5 percent of the warming generated by human activity. ").
124. See Org. for Econ. Co-operation & Dev., Int'l Transp. Forum, Reducing Transport Greenhouse Gas Emissions: Trends and Data 10 (2010), available at http:// www.internationaltransportforum.org/Pub/pdf/10GHGTrends.pdf (on file with the Columbia Law Review) (noting that shipping accounts for 3% of global fossil-fuel-based emissions).
125. See Scope of a Cap-and-Trade Program, at 7 & fig.2 (analyzing sources of domestic carbon emissions).
126. Envtl. Prot. Agency, Inventory of U.S. Greenhouse Gas Emissions and Sinks: 1990-2005, at 2-22 to-23 (2007), available at http://epa.gov/climatechange/emissions/ downloads06/07CR.pdf (on file with the Columbia Law Review) (providing estimates of percentage of direct U.S. greenhouse gas emissions by economic sector for 2005).
127. See, e.g., Dillingham statement, (noting "aviation accounts for about 2.7% of the total U.S. contribution of greenhouse gas emissions").
128. 2 emissions in 1998, 2002, and 2006). The full report is available at http://www.esa.doc.gov/sites/ default/files/reports/documents/co2reportfinal.pdf and the appendix is available at http://www.esa.doc.gov/sites/default/files/reports/documents/appendix_0.pdf. Totals in the original are in million metric tons. Summing of sectors may generate doublecounting.
129. 2 that includes China and India before committing to costly reductions in the United States").
130. 2 by less than 1 percent").
131. The Indian press has noted that India only contributed 3% of the stock of greenhouse gases in the atmosphere, as compared to 28% for the United States. See, e.g., D. Balasubramanian, Climate Change and the Copenhagen Discord, Hindu (Feb. 10, 2010), http://www.thehindu.com/sci-tech/science/article104597.ece (on file with the Columbia Law Review).
132. See Stobo Sniderman, The Era of Carbon Conditionality, Global Brief (Nov. 22, 2010), http://globalbrief.ca/blog/2010/11/22/the-era-of-carbon-conditionality (on file with the Columbia Law Review) (noting that because Bangladesh "emits less than a fifth of one percent of the world's total emissions" it "wants aid to help it adapt to climate change, not to reduce its emissions").
133. see also Cass R. Sunstein, The World vs. The United States and China? The Complex Climate Change Incentives of the Leading Greenhouse Gas Emitters, 55 UCLA L. Rev. 1675, 1688 (2008) (noting African nations are "trivial greenhouse gas emitters").
134. See Oli Brown & Alec Crawford, Int'l Inst. for Sustainable Dev., Rising Temperatures, Rising Tensions: Climate Change and the Risk of Violent Conflict in the Middle East 29 (2009), available at http://www.iisd.org/pdf/2009/rising_temps_middle_ east.pdf (on file with the Columbia Law Review) (arguing that developing nations in the Levant-Syria, Lebanon, Jordan, and the occupied Palestinian territory-which as a region produces less than one percent of global GHG emissions, may come to further resent Western nations and Israel if Copenhagen fails to produce meaningful concessions from developed countries).
135. Some parties do not use the one percent framing to undercut perceived obligations to reduce emissions, but rather to acknowledge their contribution and to support mitigation efforts. See City of New York, PlaNYC, A Greener, Greater New York 150 (2011), available at http://nytelecom.vo.llnwd.net/o15/agencies/planyc2030/pdf/ planyc_201_planyc_full_report.pdf (on file with the Columbia Law Review) (outlining city's carbon mitigation actions).
136. see also Alliance of Small Island States (AOSIS), Declaration on Climate Change 2009 ¶ 11 (2009), available at http://aosis.info/documents/AOSIS %20Summit%20Declaration%20Sept%2021%20FINAL.pdf (on file with the Columbia Law Review) ("[W]hile SIDS contribute the least to global emissions... our nations continue to take significant actions towards the reduction of our own emissions including through regional and inter-regional energy initiatives."). The California Environmental Protection Agency Air Resources Board provides another useful example. The Board specifically stated it is "clear" emissions from light duty vehicles in California contribute "less than 1 percent" of global greenhouse gas emissions. Nonetheless, the Board found "it does not necessarily follow" that such light-duty vehicles should not be regulated in California. Cal. Envtl. Prot. Agency Air Res. Bd., Initial Statement of Reasons for Proposed Rulemaking, Public Hearing to Consider Adoption of Regulations to Control Greenhouse Gas Emissions from Motor Vehicles 145 (Aug. 6, 2004), available at http://www.arb.ca.gov/ regact/grnhsgas/isor.pdf (on file with the Columbia Law Review).
137. See, e.g., Scope of a Cap-and-Trade Problem, at 9 & fig.2 (pointing to small residential share of total domestic carbon emissions as basis for focusing on other emissions source categories).
138. See National Energy Policy: Coal: Hearing Before the Subcomm. on Energy & Air Quality of the H. Comm. on Energy & Commerce, 107th Cong. 48-49 (2001) (statement of J. Brett Harvey, President, CONSOL Energy) (opposing inclusion of carbon dioxide in multi-pollutant clean air bill, stating, "[w]hile the human involvement in this growth represents less than one percent of greenhouse gas emissions, being emissions from motor vehicles, power plants, factories, homes, disposal sites, and, yes, even mines, " U.S. national energy policy should examine other means to mitigate greenhouse gas emissions).
139. See David Henderson, Op-Ed., Let There Be (Incandescent) Light, Wash. Post, Oct. 2, 2009, at A21 ("Banning traditional light bulbs as used in private homes seems an [environmental protection] effort [with] very little payoff.... Congress should regulate matters that require the force of law, such as banning mountaintop removal in coal mining and new coal-burning power plants. Leave people to change their own light bulbs. ").
140. see also Mike Tidwell, Op-Ed., To Really Save the Planet, Stop Going Green, Wash. Post, Dec. 6, 2009, at B1 ("Instead of continuing our faddish and counterproductive emphasis on small, voluntary actions, we should follow the example of Americans during past moral crises and work toward large-scale change. "). One percent arguments against reducing household demand come from the right as well as the left. See, e.g., Joseph Kahn, Cheney Promotes Increasing Supply as Energy Policy, N.Y. Times, May 1, 2001, at A1 (noting Vice President Dick Cheney's assertion that "[c]onservation may be a sign of personal virtue, but it is not a sufficient basis for a sound, comprehensive energy policy").
141. See Brendan I. Koerner, Is an Idle Car the Devil's Workshop?, Slate (May 27, 2008), http://www.slate.com/id/2192187/ (on file with the Columbia Law Review) ("[C]utting out idling, though certainly advisable, isn't going to... make a huge dent in our national carbon footprint.... [It] would represent about 0.2 percent of the carbon dioxide that was emitted in the United States in 2006.").
142. Amanda R. Carrico et al., Costly Myths: An Analysis of Idling Beliefs and Behavior in Personal Motor Vehicles, 37 Energy Pol'y 2881, 2884 (2009).
143. Sustainable Energy and the Federal Government: Hearing Before the S. Subcomm. on Fed. Fin. Mgmt., Gov't Info., Fed. Servs., & Int'l Sec. of the S. Comm. on Homeland Sec. & Gov't Affairs, 111th Cong. 2 (Jan. 27, 2010) (statement of Dr. Dorothy Robyn, Deputy Under Secretary for Installations and Environment, U.S. Department of Defense), available at http://hsgac.senate.gov/public/index.cfm?FuseAction=Hearings. Hearing&Hearing_id=c7cb1779-8aa1-4250-8dfe-18e06b579af1 (on file with the Columbia Law Review) (testifying about risks to Defense Department arising from heavy petroleum use).
144. Sustainable Energy and the Federal Government: Hearing Before the S. Subcomm. on Fed. Fin. Mgmt., Gov't Info., Fed. Servs., & Int'l Sec. of the S. Comm. on Homeland Sec. & Gov't Affairs, 111th Cong. 2 (Jan. 27, 2010) (statement of Dr. Dorothy Robyn, Deputy Under Secretary for Installations and Environment, U.S. Department of Defense), available at http://hsgac.senate.gov/public/index.cfm?FuseAction=Hearings. Hearing&Hearing_id=c7cb1779-8aa1-4250-8dfe-18e06b579af1 (on file with the Columbia Law Review) (testifying about risks to Defense Department arising from heavy petroleum use).
145. Sustainable Energy and the Federal Government: Hearing Before the S. Subcomm. on Fed. Fin. Mgmt., Gov't Info., Fed. Servs., & Int'l Sec. of the S. Comm. on Homeland Sec. & Gov't Affairs, 111th Cong. 2 (Jan. 27, 2010) (statement of Dr. Dorothy Robyn, Deputy Under Secretary for Installations and Environment, U.S. Department of Defense), available at http://hsgac.senate.gov/public/index.cfm?FuseAction=Hearings. Hearing&Hearing_id=c7cb1779-8aa1-4250-8dfe-18e06b579af1 (on file with the Columbia Law Review) (testifying about risks to Defense Department arising from heavy petroleum use).
146. See generally Madeline June Kass, A NEPA Climate Paradox: Taking Greenhouse Gases into Account in Threshold Significance Determinations, 42 Ind. L. Rev. 47, 48-55 (2009) (noting importance of considering climate change in NEPA analyses).
147. Amy L. Stein, Climate Change Under NEPA: Avoiding Cursory Consideration of Greenhouse Gases, 81 U. Colo. L. Rev. 473, 483-99 (2010) (describing agency consideration of climate change impacts under NEPA).
148. America's Energy Future: Hearing Before the Subcomm. on Energy & Env't of the H. Comm. on Energy & Commerce, 111th Cong. 4 (2010) (statement of James J. Mulva, CEO, ConocoPhillips), available at http://republicans.energycommerce.house. gov/Media/file/Hearings/Energy/2010-06-15_oil_ceos/Mulva%20Statement.pdf (on file with the Columbia Law Review).
149. See Lynn Garner, Senators Ask Clinton for Thorough Review of Proposal for Canadian Oil Sands Pipeline, 209 Daily Env't Rep. (BNA), Nov. 1, 2010, at A-11 (reporting on status of NEPA analysis of oil sands pipeline). Similar arguments have been made about the relative size of the carbon emissions that should be subject to state versions of NEPA.
150. See, e.g., Jeffrey D. Dintzer & Margaret A. Farrand, Accounting for Climate Impacts Under the California Environmental Quality Act, 1 Daily Env't Rep. (BNA), Jan. 5, 2009, at B-1 ("In the context of greenhouse gas emissions, it is far from clear how to determine what is 'significant,' so as to require preparation of an Environmental Impact Report, given that any given project contributes only a very small amount to the global problem. ").
151. See Megan Stubbs, Cong. Res. Serv., R41622, Environmental Regulation and Agriculture 1 (2011) (noting that because "[a]ttempt[] to regulate numerous individual crop and livestock operations can be cost prohibitive for government regulators[,]... much of the current federal farm policy... is... voluntary, " not compulsory).
152. Steven D. Cook, Farm, Forestry Groups Say Climate Bill Should Not Regulate Those Sectors, 106 Daily Env't Rep. (BNA), June 5, 2009, at A-8 (quoting Dennis Nuxoll of American Farmland Trust for proposition that "so many small sources 'does not warrant inclusion of administhe whole agricultural sector within the category of covered sectors'" in the House cap and trade legislation).
153. See Press Release, Innovation Ctr. for U.S. Dairy, Dairy Industry Completes Fluid Milk Carbon Footprint Study as Part of Industrywide Sustainability Commitment (Sept. 22, 2010), available at http://www.usdairy.com/Newsroom/2010PressReleases/Pages/Dairy industrycompletesfluidmilkcarbonfootprintstudy.aspx (on file with the Columbia Law Review) (discussing carbon emissions of dairy industry).
154. See Kate Galbraith, Farmers Panic About a 'Cow Tax,' N.Y. Times Green Blog (Dec. 1, 2008, 12:46 PM), http://greeninc.blogs.nytimes.com/2008/12/01/farmers-panicabout-a-cow-tax (on file with the Columbia Law Review) (reporting on response of agricultural sector to proposed carbon emissions regulations).
155. See Kate Galbraith, Farmers Panic About a 'Cow Tax,' N.Y. Times Green Blog (Dec. 1, 2008, 12:46 PM), http://greeninc.blogs.nytimes.com/2008/12/01/farmers-panicabout-a-cow-tax (on file with the Columbia Law Review) (reporting on response of agricultural sector to proposed carbon emissions regulations).
156. See Regulating Greenhouse Gas Emissions Under the Clean Air Act, 73 Fed. Reg. 44,354, 44,376 (proposed July 30, 2008) (providing Department of Agriculture comments on EPA carbon regulatory options). Ironically, the DOA advocated an exemption based on how many agricultural operations exceeded the statutory threshold: "Even very small agricultural operations would meet a 100-tons-per-year emissions threshold. For example, dairy facilities with over 25 cows, beef cattle operations of over 50 cattle, swine operations with over 200 hogs, and farms with over 500 acres of corn" would be covered.
157. See Greenhouse Gas Emissions: Hearing before the Subcomm. on Energy & Env't of the H. Comm. on Sci. & Tech., 111th Cong. 38 (Feb. 24, 2009) (statement of Leslie Wong, Director, Greenhouse Gas Programs, Waste Management), available at http:/ /science.house.gov/sites/republicans.science.house.gov/files/documents/hearing/0224 09_Wong.pdf (on file with the Columbia Law Review) ("Overall, the waste sector is a very small contributor to total U.S. GHG emissions-less than three percent.").
158. Aircraft Owners & Pilots Ass'n, General Aviation and Greenhouse Gas Emission, http://www.aopa.org/whatsnew/regulatory/regghg.html (on file with the Columbia Law Review) (last visited Aug. 14, 2011).
159. Aircraft Owners & Pilots Ass'n, General Aviation and Greenhouse Gas Emission, http://www.aopa.org/whatsnew/regulatory/regghg.html (on file with the Columbia Law Review) (last visited Aug. 14, 2011).
160. Special Report: Aviation and Climate Change-Part I, Regional Aviation News (July 23, 2007), http://www.aviationtoday.com/ran/categories/commercial/14182.html (on file with the Columbia Law Review) (stating "legislators and regulators should look at the record of what aviation has already accomplished over the last 40 years before using the industry as a scapegoat for their failure" to make tough regulatory decisions). As we noted at the outset, the effect of administrative costs on the marginal costs of regulating one percent sources is a genuine concern.
161. Letter from Am. Forest & Paper Ass'n et al., to Liza Perez Jackson, Adm'r, U.S. Envtl Prot. Agency (Apr. 1, 2009) [hereinafter Multi-Industry Letter], available at http:// www.uschamber.com/issues/letters/2009/090401_caa.htm (on file with the Columbia Law Review).
162. see also Steven D. Cook, Senate Republicans Want More Information from McCarthy on Small Source Emissions, 40 Daily Env't Rep. (BNA), May 11, 2009, at A-9 (on file with the Columbia Law Review) (describing senators' efforts to raise concerns about EPA regulation of small carbon emissions sources as "'an incredibly cynical ploy... to block solutions to the climate crisis and create a distraction from the real issues'" (quoting Kassie Siegel, Dir. of the Ctr. for Biological Diversity's Climate Law Inst.).
163. See Lesli A. Maxwell, High-Stakes Assault on Dirty Air: Dairies, Farms, Fireplaces and Old Cars Would See Tougher Anti-Pollution Regulations, The Sacramento Bee, Mar. 1, 2003, at A3 (noting that S.B. 708 would only exempt cars at least forty-five years old).
164. According to Karl Brauer, the majority of those cars are restored classic cars that are not driven for daily use, thus the one percent conclusion. Karl Brauer, Big Economies, Small Minds, Edmunds. com (Mar. 20, 2003), http://www.edmunds.com/news/column/ carmudgeon/94938/article.html (on file with the Columbia Law Review). Thus, according to Bauer, "emissions testing old cars is a wasted effort if California really wants to improve its air quality."
165. Press Release, Cal. Envtl. Prot. Agency, Governor Davis Signs Landmark Air Quality Legislation into Law (Sept. 22, 2003), reprinted in Cal. Envtl. Prot. Agency, Enivronmental Accomplishments 1999-2003, at 535 (2003), avaliable at http:// www.calepa.ca.gov/Legislation/Archives/Complete99-03.pdf (on file with the Columbia Law Review).
166. Press Release, Cal. Envtl. Prot. Agency, Governor Davis Signs Landmark Air Quality Legislation into Law (Sept. 22, 2003), reprinted in Cal. Envtl. Prot. Agency, Enivronmental Accomplishments 1999-2003, at 535 (2003), avaliable at http:// www.calepa.ca.gov/Legislation/Archives/Complete99-03.pdf (on file with the Columbia Law Review).
167. see also John Ellis, City Officials Address Budget, Valley Air Issues Council Lends Its Support to a Package of Bills Aimed at Cleaning Up San Joaquin Valley Air, The Fresno Bee, May 21, 2003, at B1 (reporting on responses to air emissions requirements).
168. See, e.g., Clear Skies Act of 2003: Hearing on S. 485 Before the Subcomm. on Clean Air, Climate Change, & Nuclear Safety of the S. Comm. on Env't & Pub. Works, 108th Cong. 372-73 (2003) (statement of Wes Taylor, President of Production, TXU Energy North America) (arguing against new mercury emissions controls on coal-fired electric generating plants by asserting, "the mercury emission controls would not significantly reduce global loading of mercury-the Environmental Protection Agency has stated that U.S. electric generators comprise less than one percent of the global mercury emissions").
169. William L. Kovacs, U.S. Chamber of Commerce, Comments on EPA's Proposed Rule: Proposed National Emission Standards for Hazardous Air Pollutants.
170. Alternative, Proposed Standards of Performance for New and Existing Stationary Sources: Electric Utility Steam Generating Units 16-17 (2004), available at http://www.uschamber. com/sites/default/files/comments/commentsepaproposedruleonmercury.pdf (on file with the Columbia Law Review).
171. Alternative, Proposed Standards of Performance for New and Existing Stationary Sources: Electric Utility Steam Generating Units 17 (2004), available at http://www.uschamber. com/sites/default/files/comments/commentsepaproposedruleonmercury.pdf (on file with the Columbia Law Review).
172. See, e.g., National Environmental Policy Act of 1969, Pub. L. No. 91-190, § 102(2)(c), 83 Stat. 852, 853 (codified as amended at 42 U.S.C. § 4332(2)(C) (2006) (requiring that federal agencies produce environmental impact statements prior to undertaking major federal actions).
173. Emergency Planning and Community Right-to-Know Act of 1986, 42 U.S.C. § 11023 (requiring covered industrial sectors to file annual reports of disclosures of more than 650 listed toxic substances to create the Toxics Release Inventory). See generally Bradley C. Karkkainen, Toward a Smarter NEPA: Monitoring and Managing Government's Environmental Performance, 102 Colum. L. Rev. 903, 955-67 (2002) (providing assessment of role of information disclosure in environmental law and according reform of NEPA).
174. See Mandatory Reporting of Greenhouse Gases, 74 Fed. Reg. 16,448, 16,457-61 (proposed Oct. 30, 2009) (codified as amended in scattered sections of 40 C.F.R.) (providing concise summary of existing federal, state, and regional emissions reporting programs).
175. Carbon Disclosure Project, https://www.cdproject.net/en-US/Pages/HomePage.aspx (on file with the Columbia Law Review) (last visited Aug. 14, 2011) (providing usable inventory of corporate emissions disclosures in absence of mandatory reporting requirements).
176. See Mandatory Reporting of Greenhouse Gases, 74 Fed. Reg. at 52,260 (requiring disclosure of carbon dioxide equivalents).
177. See Mandatory Reporting of Greenhouse Gases, 74 Fed. Reg. at 52,272 (requiring disclosure of carbon dioxide equivalents).
178. See Federal Leadership in Environmental, Energy, and Economic Performance, Exec. Order No. 13,514, § 2(a)-(b), 3 C.F. R 248, 249-50 (2010).
179. See Press Release, White House Press Office, President Obama Sets Greenhouse Gas Emissions Reductions Targets for Federal Operations (Jan. 29, 2010), available at http://www.whitehouse.gov/the-press-office/president-obama-sets-greenhouse-gas-emis sions-reduction-target-federal-operations (on file with the Columbia Law Review). The President also has directed agencies to reduce indirect emissions by 13% by 2020. Press Release, White House Press Office, President Obama Expands Greenhouse Gas Reduction Target for Federal Operations (July 20, 2010), available at http://www.whitehouse.gov/ the-press-office/president-obama-expands-greenhouse-gas-reduction-target-federal-opera tions (on file with the Columbia Law Review).
180. Exec. Order No. 13,514, § 8, 3 C.F.R. at 255.
181. To assist this effort, the Executive Order requires the Council on Environmental Quality (CEQ), an executive office agency, in consultation with other agencies to issue guidelines on greenhouse gas accounting and reporting. The CEQ issued Federal Greenhouse Gas Accounting and Reporting Guidance (Oct. 6, 2010) [hereinafter CEQ Accounting Guidance], available at http://www.whitehouse.gov/sites/default/files/ microsites/ceq/ghg_guidance_document_0.pdf (on file with the Columbia Law Review), as well as an accompanying Technical Support Document Federal Greenhouse Gas Accounting and Reporting Guidance (Oct. 6, 2010) [hereinafter Technical Support], available at http://www.whitehouse.gov/sites/default/files/microsites/ceq/technical_ support_document_1.pdf (on file with the Columbia Law Review). That Guidance specifically declines to establish de minimis reporting thresholds below which reporting is not required. See CEQ Accounting Guidance. Rather the agency is to use the methodologies in the Technical Support Document to address small or trace emissions.
182. See Exec. Order No. 13,514, § 8, 3 C.F.R. at 255 (requiring agencies to prepare annual Strategic Sustainability Performance Plans for review by CEQ and OMB, but not requiring assessment of carbon impacts of regulations themselves).
183. Memorandum from Nancy H. Sutley, Council on Envtl. Quality, to Heads of Federal Departments and Agencies, Draft NEPA Guidance on Consideration of the Effects of Climate Change and Greenhouse Gas Emissions (Feb. 18, 2010), http://ceq.hss.doe. gov/nepa/regs/Consideration_of_Effects_of_GHG_Draft_NEPA_Guidance_FINAL_0218 2010.pdf (on file with the Columbia Law Review) [hereinafter, Sutley Memorandum].
184. Eric R. Stone, J. Frank Yates & Andrew M. Parker, Risk Communication: Absolute Versus Relative Expressions of Low-Probability Risks, 60 Organizational Behav. & Hum. Decision Processes 403 (1994).
185. see also Colin Camerer & Howard Kunreuther, Decision Processes for Low Probability Events: Policy Implications, 8 J. Pol'y Analysis & Mgmt. 565, 570 (1989) (showing same effect).
186. Diane F. Halpern, Sonia Blackman & Billis Salzman, Using Statistical Risk Information to Assess Oral Contraceptive Safety, 3 Applied Cognitive Psychol. 251, 256 (1989) (showing same effect).
187. American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5, 123 Stat. 115 (to be codified in scattered titles of U.S.C.).
188. See Farhana Hossain, Amanda Cox, John McGrath & Stephan Weitberg, The Stimulus Plan: How to Spend $787 Billion, N.Y. Times, http://projects.nytimes.com/ 44th_president/stimulus (on file with the Columbia Law Review) (last visited Nov. 7, 2011) (identifying ARRA projects).
189. see also Where the US Stimulus Money is Going, 461 Nature 856, 856-57 (2009) (noting allocation of stimulus funds for research).
190. In an implicit recognition of the important nexus between economic activity and carbon emissions, Congress has asked the National Academy of Sciences to conduct a carbon audit of the tax code. See Energy Improvement and Extension Act of 2008, Pub. L. No. 110-343, § 117(a), 122 Stat. 3807, 3831 ("[T]he National Academy of Sciences [shall] undertake a comprehensive review of... specific tax provisions that have the largest effects on carbon and other greenhouse gas emissions.... ").
191. see also Consolidated Appropriations Act of 2010, Pub. L. No. 111-117, 123 Stat. 3034 (to be codified in scattered titles of U.S.C.) (appropriating $1.5 million to conduct audit).
192. The Congressional Budget Office's report in third quarter of 2010 estimated that the ARRA increased GDP by 1.5-4.2%. Cong. Budget Office, Estimated Impact of the American Recovery and Reinvestment Act on Employment and Economic Output from April 2010 Through June 2010, at 3 tbl.1 (2010) [hereinafter Cong. Budget Office, Estimated Impact], available at http://www.cbo.gov/ftpdocs/117xx/doc11706/08-24-ARRA.pdf (on file with the Columbia Law Review). We note that there is substantial uncertainty about the multiplier by which GDP increases when the government spends a dollar. Some models suggest that it is zero (all government spending is wasteful because monetary policy stabilizes the economy), others that it is one (suggesting that stimulus spending simply shifts GDP from the future to now), and yet others that it is infinity (fiscal stimulus saves us from a financial meltdown). See Russell Hall, How Much Does GDP Rise if the Government Buys More Output? 3-6 (Nat'l Bureau of Econ. Research, Working Paper No. 15496, 2009), available at http://www.nber.org/papers/w15496 (on file with the Columbia Law Review) (describing different models for multiplier by which GDP increases). We also note the problem that the numbers available through the International Energy Agency are average numbers, whereas the stimulus results in a marginal change. The marginal change is likely to be different from the average, and there also is a broader question regarding whether the ARRA-induced GDP growth is long-term. We are only trying to provide a very rough sense of the impact of the bill, however, and our estimates are valuable even if they are off by an order of magnitude.
193. 2 Emissions from Fuel Combustion 89 (2010), available at http://www.iea.org/co2highlights/CO2highlights.pdf (on file with the Columbia Law Review). These assumptions are necessary in part because there was substantial opposition to calculating the environmental impacts of projects funded by the ARRA, at least ostensibly because the assessment process would delay spending. See Conn Carroll, NEPA: Yet Another Reason the Stimulus Is Guaranteed to Fail, The Foundry (Feb. 5, 2009, 4:03 PM), http://blog.heritage.org/2009/02/05/nepa-yet-another-reason-the stimulus-is-guaranteed-to-fail (on file with the Columbia Law Review) (discussing impact of NEPA delays on stimulus implementation). ARRA activities must clear NEPA review, § 1609, but provisions are in place to ensure the expeditious completion of NEPA reviews, § 1609(b).
194. 2).
195. See Sins of Emission, Economist, Mar. 14, 2009, at 26, ("The administration has dedicated roughly a tenth of the $787 billion to be spent under the stimulus bill to energy and the environment... includ[ing] $33 billion to green the country's electricity supply, $27 billion for energy efficiency and $19 billion for cleaner forms of transport. ").
196. See Press Release, White House Press Office, President to Attend Copenhagen Climate Talks (Nov. 25, 2009), available at http://www.whitehouse.gov/the-press-office/ president-attend-copenhagen-climate-talks (on file with the Columbia Law Review) ("[T]he President is prepared to put on the table a U.S. emissions reduction target in the range of 17% below 2005 levels in 2020."). See generally Office of Mgmt. & Budget, Creating the Clean Energy of Tomorrow and Protecting the Environment and Natural Resources, The Federal Budget, Fiscal Year 2012, http://www.whitehouse.gov/omb/factsheet/creatingthe-clean-energy-of-tomorrow (on file with the Columbia Law Review) (last visited Aug. 14, 2012) (describing Administration's energy and environmental policy).
197. Rules of the House of Representatives, Rule XIII, cl. 3(c)-(d), 112th Cong. (2011) [hereinafter House Rules], available at http://rules.house.gov/Media/file/PDF_ 112_1/legislativetext/112th%20Rules%20Pamphlet.pdf (on file with the Columbia Law Review).
198. 2 U.S.C. § 658b(c)-(d) (2006).
199. Standing Rules of the Senate, S. Doc. No. 110-9, Rule XXVI, cl. 11(b)(1) (2007).
200. Pub. L. No. 93-344, 88 Stat. 297 (codified as amended at 2 U.S.C. §§ 601-688).
201. See Stat. at 320 (codified as amended at 2 U.S.C. § 653(1). CBO prepares hundreds of these cost estimates a year. See Cong. Budget Office, Cost Estimates for the 111th Congress, http://www.cbo.gov/CEBrowse.cfm (on file with the Columbia Law Review) (last visited Aug. 14, 2011) (listing current estimates for various bills).
202. 2 U.S.C. § 602(e). For an example of such a report, see generally Cong. Budget Office, Pub. No. 4156, The Budget and Economic Outlook: An Update (2010) (providing annual report to Congress).
203. See John Dinan, Strengthening the Political Safeguards of Federalism: The Fate of Recent Federalism Legislation in the U.S. Congress, Publius, Summer 2004, at 55, 56-57 (describing concerted efforts by major state and local government organizations to end unfunded mandates).
204. See Elizabeth Garrett, Framework Legislation and Federalism, 83 Notre Dame L. Rev. 1495, 1514 (2008) [hereinafter Garrett, Framework Legislation] (describing incentives of legislators to support unfunded mandates).
205. Anita S. Krishnakumar, Representation Reinforcement: A Legislative Solution to a Legislative Process Problem, 46 Harv. J. on Legis. 1, 17 (2009) (same).
206. Pub. L. No. 104-4, 109 Stat. 48 (codified at 2 U.S.C. §§ 658-658g, 1501-1571).
207. 2 U.S.C. § 658b(b).
208. § 658b(a), (c)-(d), (f) (requiring committee to include and publish CBO's report).
209. § 658c(a)-(b) (requiring CBO to prepare report).
210. § 658d(a)(1).
211. § 658d(a)(2). The 2010 yearly threshold, adjusted for inflation, was $70 million for intergovernment mandates. Cong. Budget Office, Pub. No. 4255, A Review of CBO's Activities in 2010 Under the Unfunded Mandates Reform Act 1 (2011) [hereinafter Cong. Budget Office, Activities in 2010].
212. See 141 Cong. Rec. 7749, 7749 (1995) (statement of Sen. John Glenn) ("[O]ne of the major objectives of [UMRA] is to develop better information and data on the cost of mandates and to force that to be considered up front. ").
213. see also Garrett, Framework Legislation, at 1500 (noting same goal). 187. 2 U.S.C. § 658(7)(A)(i). See generally U.S. Gov't Accountability Office, GAO-05-454, Unfunded Mandates: Views Vary About Act's Strengths, Weaknesses, and Options for Improvement (2005) (providing relatively comprehensive assessment of UMRA's strengths and weaknesses).
214. Cong. Budget Office, A Review of CBO's Activities Under the Unfunded Mandates Reform Act, 1996 to 2005, at 4-5 (2006).
215. See Elizabeth Garrett, Enhancing the Political Safeguards of Federalism? The Unfunded Mandates Reform Act of 1995, 45 U. Kan. L. Rev. 1113, 1148-50 (1997) [hereinafter Garrett, Enhancing] (discussing national policymakers' perception of CBO cost estimates as credible and disinterested).
216. See ("Studies produced by the intergovernmental lobby on the costs of unfunded mandates have been discounted as the product of self-interested parties who are seeking to promote their own agenda. ").
217. "CBO's estimates will be well regarded because of its reputation, and those representing states' interests before national lawmakers may find their arguments given more weight when they can rely on this information. "
218. Alternatively, the carbon calculation function could be vested in a freestanding agency. The critical point, as noted below, is that the agency with this responsibility should have, or have the capacity to develop, the credibility of CBO. Indeed, CBO's credibility recommends reposing this responsibility in it.
219. Both the House and Senate currently have rules that require disclosure of the budget consequences of proposed legislation. See S. Con. Res. 21, 110th Cong. § 201 (enacted) (2007) (adopting Senate pay-as-you-go point of order).
220. H.R. Res. 6, 110th Cong. § 405 (enacted) (2007) (adopting House pay-as-you-go point of order). House and Senate Rules could also be the source of a carbon disclosure requirement. As an interim measure, these carbon cost-of-legislation estimates could be produced by a private organization such as those established to monitor government action.
221. See, e.g., Michael P. Vandenbergh & Mark A. Cohen, Climate Change Governance: Boundaries and Leakage, 18 N.Y.U. Envtl. L.J. 221, 282 (2010) (discussing use of benchmarks to calculate carbon emissions in corporate supply chains).
222. See Federal Leadership in Environmental, Energy, and Economic Performance, Exec. Order No. 13,514, § 2, 3 C.F. R 248, 249 (2010).
223. Sutley Memorandum, Mandatory Reporting of Greenhouse Gases, 74 Fed. Reg. 56,260, 56,272 (Oct. 30, 2009) (codified as amended in scattered sections of 40 C.F.R.).
224. see also Carbon Disclosure Project, https://www.cdproject.net/en-US/Pages/HomePage.aspx (on file with the Columbia Law Review) (last visited Oct. 16, 2011) (reporting organizations' disclosures).
225. See, e.g., The Global Warming Solutions Act, 2006 Cal. Legis. Serv. ch. 488 (A.B. 32) (West) (requiring reporting of greenhouse gas emissions from California emissions sources).
226. Cal. Code Regs. tit. 17, §§ 95100-95133 (2010) (requiring reporting and verification of state greenhouse gas emissions). 310 Mass. Code Regs. § 7.71 (2010) (same).
227. N.H. Code R. Env-A 900 (Lexis Nexis 2010) (requiring same of owners and operators of emissions sources).
228. Nw. States in Action, Climate Solutions, http://climate solutions.org/nw-states/?searchterm=Nw.%20States%20in%20Action (on file with the Columbia Law Review) (last visited Sept. 5, 2011) (providing updates on state environmental action).
229. "The Carbon Disclosure Project is an independent not-for-profit organization holding the largest database of primary corporate climate change information in the world. "
230. see also Greenhouse Gas Protocol, About the GHG Protocol (2011), http://www.ghgprotocol.org/about-ghgp (on file with the Columbia Law Review) ("The Greenhouse Gas Protocol is the most widely used international accounting tool for government and business leaders to understand, quantify, and manage greenhouse gas emissions.").
231. For a discussion of the importance of leakage (the shifting of emissions from a jurisdiction where emissions are regulated to one where they are not), indirect emissions, and methods of reducing the costs of calculating indirect emissions, see Michael P. Vandenbergh, Climate Change: The China Problem, 81 S. Cal. L. Rev. 905, 945-50 (2008).
232. See, for example, Cong. Budget Office, An Analysis of the President's Budgetary Proposals for Fiscal Year 2011 app. B (2010), http://www.cbo.gov/ftpdocs/112xx/doc11280/front matter.shtml (on file with the Columbia Law Review) (using "'textbook' growth model, " "life-cycle growth model, " and "infinite-horizon growth model" to analyze supply-side effects of budget).
233. App. A (relying on assumptions about tax policy in ten-year period of budget estimate).
234. See ("[I]f one believes that federalism interests are insufficiently protected, one should consider directing some efforts toward the adoption of new legislative procedures. ").
235. The House revision does not require as detailed a statement as Professors Garrett and Vermeule proposed, but it clearly seeks to prompt more deliberation about Congress's constitutional powers. See In its justification for this Rule, the House Rules Committee writes, "Just as a cost estimate from the Congressional Budget Office informs the debate on a proposed bill, a statement outlining the power under the Constitution that Congress has to enact a proposed bill will inform and provide the basis for debate. " Comm. on Rules, U.S. House of Representatives, New Constitutional Authority Requirement for Introduced Legislation (Jan. 5, 2011), http://rules.house.gov/about/PolicyDetail.aspx?NewsID=72 (on file with the Columbia Law Review). So too with regard to carbon emissions.
236. See Shameek Konar & Mark A. Cohen, Information as Regulation: The Effect of Community Right to Know Laws on Toxic Emission, 32 J. Envtl. Econ. & Mgmt. 109, 123 (1997) (finding relationship between toxic release reporting and later toxic emissions).
237. Budget Enforcement Act of 1990, Pub. L. No. 101-508, tit. XIII, §§ 13201-13204, 104 Stat. 1388, 1388-609 to 1388-616 (codified as amended in scattered sections of 2 U.S.C.). Federal agencies, as noted above, have already committed to reducing emissions by 28% in ten years. In particular, the PAYGO approach may provide the carbon discipline necessary for many cities to achieve the commitments made in the Mayors Climate Protection Agreement, which has been signed by more than 1,000 mayors and which requires essentially that government operations achieve the carbon emissions targets included for the United States in the Kyoto Protocol. U.S. Conference of Mayors, U.S. Mayors Climate Protection Agreement (2005), avaliable at http://www.usmayors.org/climateprotection/ documents/mcpagreement.pdf (on file with the Columbia Law Review).
238. See Cong. Budget Office, Federal Debt and Interest Costs 11 (Dec. 2010), available at http://www.cbo.gov/ftpdocs/119xx/doc11999/12-14-FederalDebt.pdf (on file with the Columbia Law Review) (showing change from federal budget surplus of $236 billion in 2000 to federal budget deficit of $1,294 billion in 2010).
239. Matthew L. Wald, Recession Special: Cleaner Air, N.Y. Times, Jan. 16, 2011, at WK2.
240. See, e.g., 155 Cong. Rec. S10,257, S10,269 (daily ed. Oct. 8, 2009) (statement of Sen. Bill Nelson) (defending NASA spending as "less than 1 percent of the total Federal budget"). 150 Cong. Rec. H4175, H4217 (daily ed. June 16, 2004) (statement of Rep. Louise Slaughter) (advocating for increase in spending for federal arts agencies as "1/100 of 1 percent of the Federal budget"). 140 Cong. Rec. H3967, H4036 (daily ed. May 25, 1994) (statement of Rep. Nita Lowey) (advocating for foreign aid bill as "such a small percentage of Federal spending-less than 1 percent of the budget").
241. See 2 U.S.C. § 653(1) (2006).
242. See, e.g., Cong. Budget Office, Budget and Economic Information, http:// www.cbo.gov/budget/budget.cfm (on file with the Columbia Law Review) (last visited Aug. 27, 2011) (stating that "Monthly Budget Reviews... help to inform the Congress and the public on the monthly status of outlays, receipts, and the deficit or surplus throughout the fiscal year").
243. Federal Leadership in Environmental, Energy, and Economic Performance, Exec. Order No. 13,514, 3 C.F. R 248 (2010).
244. § 2(a)-(b), 3 C.F.R. at 249-50 (2010).
245. Press Release, White House Press Office, President Obama Sets Greenhouse Gas Emissions Reduction Target for Federal Operations. Press Release, White House Press Office, President Obama Expands Greenhouse Gas Reduction Target for Federal Operations, (discussing agencies' emissions reduction reporting requirements).
246. See J.B. Ruhl & James Salzman, Gaming the Past: The Theory and Practice of Historic Baselines in the Administrative State, 64 Vand. L. Rev. 1, 18-44 (2011) (showing benefits and possible manipulation of historical baselines as regulatory metric).
247. Cong. Budget Office, CBO Staff Memorandum: Pay-As-You-Go Budgeting 1 (1990), available at http://www.cbo.gov/ftpdocs/77xx/doc7750/90-CBO-019.pdf (on file with the Columbia Law Review).
248. Perspectives on Renewing Statutory PAYGO: Hearings Before H. Comm. on the Budget, 110th Cong. 13 (2007) [hereinafter PAYGO Hearing] (statement of Peter Orszag, Director, Congressional Budget Office).
249. Pub. L. No. 99-177, 99 Stat. 1038 (codified as amended in scattered sections of 2 U.S.C.).
250. See § 201, 99 Stat. at 1039 (providing five-year reductions of maximum deficits).
251. §§ 251-253, 99 Stat. at 1063-78 (providing process for sequestration in view of overages).
252. Budget Enforcement Act of 1990, Pub. L. 101-508, §§ 13201-13204, 104 Stat. 1388, 1388 (codified as amended in scattered sections of 2 U.S.C.).
253. Robert Keith, Cong. Research Serv., R41157, The Statutory Pay-As-You-Go Act of 2010: Summary and Legislative History 1 (2010).
254. George K. Yin, Temporary-Effect Legislation, Political Accountability, and Fiscal Restraint, 84 N.Y.U. L. Rev. 174, 226 n.208 (2009).
255. Pub. L. No. 111-139, 124 Stat. 8 (to be codified in scattered sections of 2 U.S.C.).
256. § 2, 124 Stat. at 8.
257. § 4(a)(2)(A), 124 Stat. at 10-11.
258. § 4(b), 124 Stat. at 11-12.
259. Robert Keith, Cong. Research Serv., R41157, The Statutory Pay-As-You-Go Act of 2010: Summary and Legislative History 1 (2010).
260. Providing that OMB shall prepare and President "shall issue".
261. §§ 5(b), 6(a)(1), 124 Stat. at 15-16 (subjecting only direct spending to sequestration).
262. S. Con. Res. 21, 110th Cong. § 201(a) (2007) (enacted).
263. S. Con. Res. 21, 110th Cong. § 201(b).
264. Bill Heniff, Jr., Cong. Research Serv., RL 31943, Budget Enforcement Procedures: Senate Pay-As-You-Go (PAYGO) Rule 11 (2010).
265. Bill Heniff, Jr., Cong. Research Serv., RL 31943, Budget Enforcement Procedures: Senate Pay-As-You-Go (PAYGO) Rule 11 (2010).
266. Bill Heniff, Jr., Cong. Research Serv., RL 31943, Budget Enforcement Procedures: Senate Pay-As-You-Go (PAYGO) Rule 11 (2010).
267. See, e.g., PAYGO Hearing, (statement of Peter Orszag, Director, Congressional Budget Office) (stating PAYGO rules "can definitely help to enforce fiscal discipline.... ").
268. Allen Schick, The Federal Budget: Politics, Policy, Process 170-71 (3d ed. 2007) (noting that under PAYGO "all revenue losses had to be offset" and that PAYGO rules "forced both House and Senate to play the offsets game... to include revenue-raising provisions whose sole purpose is to make room for tax cuts").
269. See (deeming PAYGO a "modest step toward budget restraint").
270. See Statutory Pay-As-You-Go Act of 2010, Pub. L. No. 111-139, § 11, 124 Stat. 8, 24-29 (to be codified at 2 U.S.C. § 905) (exempting some programs and tax policy).
271. Robert Keith, Cong. Research Serv., R41157, The Statutory Pay-As-You-Go Act of 2010: Summary and Legislative History 1 (2010).
272. See Compare Statutory Pay-As-You-Go Act of 2010, § 4(b), 124 Stat. at 11-12 (to be codified at 2 U.S.C. § 933) (providing for CBO estimates), with § 4(c), 124 Stat. at 12-13 (to be codified at 2 U.S.C. § 933) (providing for OMB adjustments).
273. See § 4(g), 124 Stat. at 14-15 (to be codified at 2 U.S.C. § 933) (providing for emergency legislation subject to point of order in Senate).
274. See J.B. Ruhl & James Salzman, Gaming the Past: The Theory and Practice of Historic Baselines in the Administrative State, 64 Vand. L. Rev. 1, 18-44 (2011) (showing benefits and possible manipulation of historical baselines as regulatory metric).
275. William B. Bonvillian, Time for Climate Plan B, Issues in Sci. & Tech., Winter 2011, at 51, 51 (noting that carbon mitigation measures should be implemented promptly because "the nation cannot afford to suspend climate efforts").
276. See Michael P. Vandenbergh, An Alternative to Ready, Fire, Aim: A New Framework to Link Environmental Targets in Environmental Law, 85 Ky. L.J. 803, 893-94 (1997) (discussing "no net loss" policy and other metrics).
277. Exec. Order No. 12,866, §§ 1, 6(a)(2), 3 C.F.R. 638, 638, 645 (1994) (stating as principle of regulation that benefits must justify costs, and requiring specific calculation of costs and benefits for significant regulations), amended by Exec. Order No. 13,563, § 1, 76 Fed. Reg. 3821, 3821 (Jan. 18, 2011).
278. Exec. Order No. 12,866, §§ 1, 6(a)(2), 3 C.F.R. 638, 638, 645 (1994) (stating as principle of regulation that benefits must justify costs, and requiring specific calculation of costs and benefits for significant regulations), amended by Exec. Order No. 13,563, § 1, 76 Fed. Reg. 3821, 3821 (Jan. 18, 2011).
279. For a recent review of other state and local climate mitigation options, see generally Katherine A. Trisolini, All Hands on Deck: Local Governments and the Potential for Bidirectional Climate Change Regulation, 62 Stan. L. Rev. 669 (2010).