In the News

The Bipartisan Infrastructure Law strengthened the Federal Energy Regulatory Commission’s authority to site interstate transmission projects that have been rejected or not acted upon by states. Used appropriately, this authority can help the United States build the transmission infrastructure necessary to achieve President Joe Biden’s goal of fully decarbonizing the electricity grid by 2035.

Questions remain regarding whether DOE’s and FERC’s recently expanded authority under the Infrastructure Investment and Jobs Act (“IIJA”) is enough to override historical state jurisdiction over the transmission siting processes, and whether the implementation of this federal authority can withstand judicial review. While it will likely be years before the new promulgation of this authority is tested in practice, in the short-term there are plenty of opportunities for interested entities to help shape these processes going forward. The Institute for Policy Integrity at New York University School of Law further suggest expanding the definition of environmental justice communities beyond those “overburdened by pollution” to include historically marginalized communities bearing any type of disproportionate environmental burden. Expanding these definitions would result in broadened environmental reviews and increased public participation in FERC’s review processes.

A bill to raise the national debt ceiling would greenlight all permits needed for the Mountain Valley pipeline’s “construction and initial operation at full capacity,” according to text released Sunday. If the bill is approved by congress, "MVP's approvals would be virtually unassailable, unless someone were to challenge the legislative provision itself," said Jennifer Danis, federal energy policy director at New York University's Institute for Policy Integrity.

Richard Revesz is changing the way the government calculates the cost and benefits of regulation, with far-reaching implications for climate change. He co-founded an N.Y.U.-affiliated think tank, the Institute for Policy Integrity, which devised the approach to analyzing the costs and benefits of environmental regulations that Mr. Revesz has brought to the White House.

The D.C. Circuit recently endorsed the Federal Energy Regulatory Commission's climate change review of a massive liquefied natural gas export project, but agency watchers question how much the decision will crack a current commissioner stalemate over weaving climate into FERC's gas infrastructure approval policies. Jennifer Danis, federal energy policy director at the Institute for Policy Integrity at New York University School of Law, discussed the implications of the case.

Last year, the Supreme Court sided with West Virginia in rejecting a different (Obama-era) EPA plan. “The West Virginia decision left intact EPA’s obligations to reduce greenhouse gas emissions that endanger public health from the power sector,” says Dena Adler, an attorney at the Institute for Policy Integrity at New York University School of Law, in an emailed statement. The 2022 ruling left pathways available to the EPA, she says, and “the agency has carefully walked those lines in this proposal.”

A Supreme Court ruling that overturns the legal doctrine Chevron v. Natural Resources Defense Council could have wider implications for existing federal regulations, said Don Goodson, a senior attorney with New York University School of Law's Institute for Policy Integrity. "It would pose another practical difficulty in how much relitigation that would open up," Goodson said in an interview. At the same time, Goodson noted that Congress clearly intended to give agencies like the Federal Energy Regulatory Commission broad jurisdiction over areas such as interstate sales and transmission of electricity.

EPA has previously set standards that require industries to invest in new types of pollution controls, said Dena Adler, an attorney with New York University’s Institute for Policy Integrity. “The history of the Clean Air Act is filled with regulations where technologies were projected to be very expensive,” she said. “And after the regulations came down, industry figured out how to install these control technologies better and cheaper.”

The upcoming rule from the Environmental Protection Agency is expected to depend on rarely used technology for capturing power plants’ greenhouse gas pollution. It will have to survive the conservative Supreme Court that hobbled the EPA’s regulatory powers just 10 months ago. An EPA standard based on carbon capture would be “entirely different” from the Obama regulation’s demand that utilities switch to cleaner fuel sources. Capturing pollution at the source “is really the bread and butter of the Clean Air Act and the type of regulation that EPA has been issuing for decades,” said Dena Adler, an attorney with New York University's Institute for Policy Integrity. 

An ambitious Biden administration’s plan to clean up emissions from a heavily polluting transportation sector will face industry litigation, but environmental lawyers see the rule holding up during eventual challenges. But the rule is not as transformative as some claim, which provides it with insulation from future claims that the rule raises “major questions,” according to Meredith Hankins, an attorney for the Institute for Policy Integrity, who said the action is rooted in tried-and-true Clean Air Act authority. The Clean Air Act has always been “technology-forcing,” and electric vehicles are squarely in the same vein as catalytic converter emission controls were when they were first mandated for vehicles, Hankins said.