Regulatory Skepticism and Technological Optimism from a Prominent Environmental Lawyer

Although I’ve featured economists in my podcast, I’ve also been privileged to host some top environmental lawyers and legal scholars, including:  Sue Biniaz (now at the U.S. State Department), Ricky Revesz (at NYU Law School), Dan Esty (from Yale Law School, now at the World Trade Organization in Geneva), Jody Freeman (of Harvard Law School), and Jonathan Wiener (of Duke University’s School of Law).

That’s a diverse group in terms of gender, but I will acknowledge that it is not a very diverse group politically.  In my latest podcast, I begin to make up for that with an environmental lawyer who has worked closely and held important positions in Republican administrations.  But I did not invite him to the podcast because of his political background and viewpoint, but simply because he is one of this country’s leading and most prominent environmental lawyers.  As I assume people of all political stripes will readily acknowledge, he’s both smart and articulate.

I’m talking about Jeffrey Holmstead, who served as Associate Counsel to the President in the George H.W. Bush administration, Assistant Administrator for Air and Radiation at the U.S. Environmental Protection Agency in the George W. Bush administration, and now leads the Environmental Strategies Group at Bracewell in Washington, DC.  My conversation with Jeff Holmstead is featured in the latest episode of “Environmental Insights: Discussions on Policy and Practice from the Harvard Environmental Economics Program,” a podcast produced by the Harvard Environmental Economics Program. Our complete conversation is here.

Despite his solid Republican credentials, Holmstead praises the Biden Administration’s early efforts to reduce greenhouse gas emissions in two specific ways.

“They have made very clear that climate change is one of their highest priorities, and they’ve actually done a couple of very important things,” Holmstead says. “Their first priority was in the transportation sector, and they finalized much more aggressive CO₂ emission standards for vehicles. And then they have proposed, but not yet finalized, a pretty aggressive approach to regulate methane emissions from oil and gas operations.”

As readers of this blog know, the Biden Administration has also promised to revise the Social Cost of Carbon, but Holmstead argues that its fate may rest with the courts, depending on how it is used.

“I think the courts have correctly said that in and of itself, that alone is not the type of action that is reviewable in court, and it won’t be reviewable until it’s used in a regulation. I think it will depend on the specific contours of the regulation that they’re doing,” he says. “All these regulatory programs have different standards that the agencies have to meet. And if it’s the kind of standard that allows them to consider benefits and costs, I think it depends on the specific context. And I think there will be some interesting litigation about that.”

Holmstead also remarks that the Securities and Exchange Commission’s proposal requiring public companies to provide certain climate-related disclosures in their registration statements and periodic reports is likely to run into significant legal challenges.  

“The idea that the Securities and Exchange Commission would essentially be regulating greenhouse gases and they would do it in the form of a disclosure, but at least as proposed, it would be a pretty intrusive form of disclosure. And so, I think that there’s a fairly good chance that if the SEC finalizes what it proposed, that it’s likely to run into trouble in the courts,” he says.

Yet Holmstead also said in our conversation that he believes there is a “good chance” of having comprehensive climate change legislation in the United States fairly soon.

“I think there are many people in the business community that would like to have the certainty of legislation. And so, I’m still optimistic that we could see something like that in the relatively near future,” he remarks. “But … ultimately it seems to me that it’s a technology question. And until there is a way to provide people with electricity and to power mobility, that is at least close to being cost competitive with coal and oil, I think it’s going to be an uphill battle.

At the end of our conversation, Jeff Holmstead concludes with a note of technological optimism: “I think that there are technological breakthroughs that are at least on the horizon that could help us solve the problem. But ultimately for me, climate change is a technology issue and not a regulatory issue.”

For all this and much more, I hope you will listen to my compete conversation with Jeffrey Holmstead, which is the 38th episode in the Environmental Insights series, with future episodes scheduled to drop each month.  You can find a transcript of our conversation at the website of the Harvard Environmental Economics Program.  Previous episodes have featured conversations with:

“Environmental Insights” is hosted on SoundCloud, and is also available on iTunes, Pocket Casts, Spotify, and Stitcher.