In the News

Industry lawyers last fall raised concerns about EPA’s reliance on those D.C. Circuit cases -- including arguing that they do not apply to existing sources. However, New York University’s Institute for Policy Integrity in a recent issue brief argues federal courts have repeatedly affirmed that technology does not have to be in widespread use to be “adequately demonstrated,” and that standards may be forward looking.

"At bottom, the Clean Power Plan essentially adopted a cap-and-trade scheme, or set of state cap-and-trade schemes, for carbon," Roberts wrote. "Congress, however, has consistently rejected proposals to amend the Clean Air Act to create such a program." The Biden rule, however, takes an entirely different approach, said Dena Adler, a senior attorney at the Institute for Policy Integrity at the New York University School of Law. “EPA’s new rule sticks to its plain vanilla, long-standing approach to reduce emissions through systems that help a source operate more cleanly,” she said.

Voluntary carbon markets remain largely unregulated despite these serious integrity issues. The U.S. Commodity Futures Trading Commission (CFTC) and the U.S. Securities and Exchange Commission (SEC) have recently taken small steps in the right direction. But as long as voluntary carbon markets continue to exist, the U.S. government should explore ways to more proactively regulate them.

EPA’s passenger vehicle rule’s “thorough analysis also offers a critical roadmap for Department of Justice litigators who will soon brief this issue. Other agencies should study EPA’s approach and follow suit,” argued Max Sarinsky, the regulatory policy director at New York University’s Institute for Policy Integrity, in a March 25 blog post.

In a recent post for the Yale Journal on Regulation’s Notice and Comment blog, the regulatory policy director at the Institute for Policy Integrity, Max Sarinsky, argued that administrative agencies should aim to preemptively rebut major questions doctrine challenges by citing previous agency actions. Sarinsky identified new Environmental Protection Agency vehicle pollution standards as an example.

Also, on April 18, New York University’s Institute for Policy Integrity hosts a webinar about the role of economics in regulatory advocacy. The discussion will cover ways to engage in the regulatory process including the White House’s National Science and Technology Council’s Subcommittee on Frontiers of Benefit-Cost Analysis.

The defense of the Federal Acquisition Regulatory (FAR) Council’s pending rule comes as another analyst recently argued that agencies should use EPA’s recently finalized vehicle emissions rule as a model for how to counter such major questions attacks, including by citing statutory mandates for the rule and drawing analogies with past agency practice. “Other agencies should study EPA’s approach and follow suit,” argued Max Sarinsky, the regulatory policy director at New York University’s Institute for Policy Integrity (IPI), last month.

Environmentalists and their allies say EPA’s recently finalized updates to its Risk Management Program (RMP) rule leaves out many measures they believe are necessary to ensure it covers all facilities at risk of accidental releases, in particular because the agency rejected calls to expand the list of chemicals whose use at a site triggers RMP requirements. “Safeguards are only helpful where they’re applicable,” Dena Adler, senior attorney at the Institute for Policy Integrity (IPI) at New York University, told Inside EPA by email.

The court’s March 29, 2024, decision in Sierra Club v. FERC held that “FERC enjoys broad discretion” when it considers requests by pipeline companies to extend their timeline to put a project into service. However, the D.C. Circuit has previously offered course corrections to FERC in pipeline cases, and FERC still faces legal vulnerability with its current approach. Al Huang, a panelist at the 2023 Roundtable, recently called on FERC to issue “comprehensive guidance … to aid both FERC and permit applicants, and increase the legal durability of the Commission’s decisions.”

“EPA’s thorough analysis also offers a critical roadmap for Department of Justice litigators who will soon brief this issue. Other agencies should study EPA’s approach and follow suit,” argues Max Sarinsky, the regulatory policy director at New York University’s Institute for Policy Integrity, in a March 25 blog post. He adds: “EPA details how its new rule is consistent with decades of agency practice and legislative purpose,” his blog post says, adding that the agency explained how the Clean Air Act text, legislative history and past rules are all consistent with considering and promoting electric vehicles.