In the News

Altogether, [the Supreme Court's] actions to transfer authority from agencies to the judiciary could curtail a wide range of financial, environmental, workplace and consumer protections. “It’s just part of a continuing trend with the federal judiciary and the Supreme Court in particular, exercising more and more power … at the expense, potentially, of the other branches,” said Don Goodson, deputy director of the Institute for Policy Integrity at New York University School of Law. 

“Congress doesn’t have the time or expertise to fill in the details for thousands of regulations, and it’s hard to anticipate the twists and turns of the future and exactly what [lawmakers] need to spell out specifically,” says Dena Adler, a senior attorney at New York University’s Institute for Policy Integrity. Agencies use their expertise to turn broad-brush statutes into nitty-gritty policies, and the courts intervene only in extreme circumstances.

As we all await the next administrative law earthquake from the Supreme Court, it may be worth taking stock of just how much the ground has already shifted. In our new article, Major Rules in the Courts: An Empirical Study of Challenges to Federal Agencies’ Major Rules, we provide this analysis. Using a novel dataset of all 1,870 major rules (as defined by the Congressional Review Act) issued from 1996 through the end of the Trump Administration, we analyze whether a major rule issued today is as likely to be challenged and withstand the challenge as a rule issued over 20 years ago. In addition to answering those overarching questions, we break down win rates by presidential administration and agency, as well as by party of the deciding judges’ appointing President. Along the way, we examine trends in forum shopping and the use of Chevron deference, among other variables.

Agencies have limited capacity to conduct rigorous cost-benefit analysis — they often cite resource limitations as a reason that they cannot monetize certain benefits. But they also have at least one strategy for mitigating this challenge: They can look to their past valuation practices for models and build on their existing methodologies. Where benefits like increased dignity and public health are at stake, every bit of valuation counts.

Meanwhile, the Institute for Policy Integrity (IPI) at New York University School of Law in June 14 comments urges EPA to further examine the potential costs and benefits in the rule with specific regard to its environmental justice benefits, its interaction with climate risks, and its effect on future pollution patterns. “EPA should set secondary NAAQS that prevent anticipated adverse and disproportionate public welfare impacts on environmental justice communities, including potential impacts to drinking water quality, subsistence fishing, and recreational opportunities,” IPI says, calling EPA’s EJ analysis “abbreviated.”

New York University’s Institute for Policy Integrity (IPI) is backing the Energy Department’s (DOE) economic justification for tougher energy efficiency standards for gas-fired appliances, arguing the rules help address “market failures” in which consumers sometimes do not choose a more-efficient appliance even if it would save them costs over time. “DOE’s modeling approach reflects the complexities of accounting for consumer choices in markets where the energy-efficiency gap exists,” IPI writes in a June 17 amicus brief in American Gas Association (AGA), et al., v. DOE, et al before the U.S. Court of Appeals for the District of Columbia Circuit.

What can the governor do? She can sign the “Climate Change Superfund Act,” which puts the world’s largest oil companies on the hook for at least some of those costs. The bill requires those companies most responsible for the emissions of greenhouse gases to pay the state $3 billion annually for the next 25 years. The major hangup had been concerns that the annual assessment will be passed on to the public. That concern runs counter to basic marketplace economics, a view echoed in an independent economic paper published by the respected Institute for Policy Integrity at the NYU School of Law. 

FERC doesn't even necessarily have to make a "significance" finding on GHG impacts in order to factor them into an ultimate decision under the NGA that a project is needed and in the public interest, said Jennifer Danis, federal energy policy director at the Institute for Policy Integrity at New York University School of Law. "For that, labeling something significant or not seems to me to be less precise than weighing monetized costs and benefits," said Danis, who has frequently represented challengers to FERC-approved pipelines.

Climate change is already causing more frequent and severe weather events, and these events pose an increasing threat to the resilience of our power grid and other critical pieces of infrastructure. Addressing these challenges and strengthening system resilience requires insights from diverse disciplines and collaboration among researchers, policymakers, and utilities. Our recent webinar, featuring experts from academia and the California Public Utilities Commission (CPUC), focused on these issues. The panelists included Dr. Duncan Callaway of UC Berkeley, Dr. Mikhail Chester of Arizona State University, Dr. Erica Fischer of Oregon State University, and Leuwam Tesfai of the CPUC.

The court's ruling does not appear likely to doom future climate cases against FERC. The D.C. Circuit's dismissal of Food & Water Watch's arguments for a robust climate analysis of the East 300 Upgrade Project was grounded in the particular facts of the case, said Jennifer Danis, federal energy policy director for New York University's Institute for Policy Integrity. "The D.C. Circuit's opinion does not have real bearing on ongoing or future challenges regarding how climate laws or costs should factor into FERC's need or public interest determinations under the Gas Act," she said in an email.