In the News

If groups do manage to show standing, Matt Lifson, an energy attorney at IPI, explained “the legal durability of regulations will depend on courts agreeing that agencies have selected the best interpretation of the law, not merely a reasonable interpretation.” But aside from interpreting statutes, “agencies will still get substantial leeway” on their expert factual and technical findings, Lifson says, “just not when it comes to interpreting the text of the statutes.” That means backers of the IRS rules will try to show that key debates -- such as what counts as a “clean” hydrogen project under the 45V credit -- are effectively technical rather than legal disputes.

However, some advocates for tougher climate policy are warning that observers should not get “too excited” about the CFTC guidance because it is relatively limited in scope. “While the guidance is a positive step towards improving voluntary carbon market integrity, it’s only a small one: The guidance is extremely limited in reach,” says a Sept. 25 post from Erin Shortell of the Institute for Policy Integrity (IPI). “The guidance applies only to a tiny sliver of transactions one step removed from voluntary carbon markets’ core.”

In other words, the CFTC designed its guidance in such a way that it cannot do anything about the underlying voluntary markets’ low-quality carbon credits, which are the most likely to be fraudulent. The guidance is “extremely limited in reach,” as Erin Shortell, a legal fellow at the nonprofit Institute for Policy Integrity, put it in a blog post.

Late last week, the Commodity Futures Trading Commission (CFTC) finalized its guidance for regulated exchanges that list derivatives products based on carbon credits. Many commentators quickly praised the guidance as improving oversight for the troubled voluntary carbon markets, which face continuing criticism over their integrity problems. In particular, many carbon credits do not represent the greenhouse gas (GHG) emissions reductions they are intended to represent. While the guidance is a positive step towards improving voluntary carbon market integrity, it’s only a small one: The guidance is extremely limited in reach.

Also on the sidelines of Climate Week, New York University’s Institute for Policy Integrity hosts a day-long event on Sept. 24 about greenhouse gas emissions accounting.

In May 2024 authors from NYU Law School’s Institute for Policy Integrity and Guarini Center on Environmental, Energy & Land Use Law wrote that the cap-and-invest program, as described so far, “is insufficient to achieve legally mandated GHG emissions reductions,” and saying there is an “urgent need for state agencies to develop complementary programs.”

“Is there a need for another group to revisit [the social cost metric] at this time? Not really,” Jason Schwartz, legal director at New York University’s Institute for Policy Integrity, tells Inside EPA’s Climate Extra. “The working group could continue to focus on things like solid application and encouraging agencies to follow the best practices.”

In an article in the Administrative Law Review, Natasha Brunstein, a former legal fellow at the Institute for Policy Integrity at New York University School of Law, claimed that in the wake of two recent Supreme Court decisions, lower federal courts’ handling of the major questions doctrine has been inconsistent.

Aspects of Loper Bright are relatively clear. The majority notes that Congress “often” lawfully delegates a degree of discretion to agencies. As illustrated in a forthcoming article by Don Goodson at New York University’s Institute for Policy Integrity, the majority draws an important distinction between grants of discretionary authority and Chevron deference. Once an agency’s discretionary authority is established, litigants defending agency actions can often take advantage of the APA’s arbitrary-and-capricious standard of review to argue that reasonable, record-supported actions should be upheld.

Summing up the views of many, the , a nonprofit group with NYU Law School, said the petitioners' economic arguments about the disclosure rule's costs and benefits suffer from fundamental flaws. Specifically, those challenging the rule "ignore baseline disclosure practices — disclosures public companies will provide regardless of the rules." "Much of corporate America already provides or will soon provide climate-related disclosures, either voluntarily or to comply with mandatory disclosure laws in other jurisdictions," the brief said.