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Trump’s EPA under his first Administrator Scott Pruitt tried to curtail that process. The agency suffered a series of legal defeats that delayed repeals of key Obama-era rules and meant their replacements weren’t final until the end of Trump’s first term. The Institute for Policy Integrity at New York University School of Law estimated that almost 80 percent of Trump administration actions were defeated in court.

Governor Hochul is co-chair of the U.S. Climate Alliance – a bipartisan coalition of governors committed to fighting climate change. Among the commitments of the Alliance is the promise to build resilience to withstand the impacts of climate change. The Climate Superfund bill would further that goal. Unless the governor approves the legislation, the entire costs of climate change – which already total billions of dollars annually – will be borne solely by New York taxpayers. The bill shifts some of those costs to the companies most responsible for our worsening climate without those costs being passed on to the public. An independent economic paper published by the respected Institute for Policy Integrity at the NYU School of Law supports that view. 

Trump’s first administration lost in court. A lot. “They did not do well in court largely because of what they did poorly during the regulatory process,” Don Goodson, the deputy director of the Institute for Policy Integrity at New York University School of Law, told Landmark.”They had a lot of procedural problems when issuing their rules, and they also had poor analyses supporting their rules.” He continued: “Basically, they were just not doing a great job issuing rules, which contributed to a historically low win rate for the administration in court.”

Governor Hochul is co-chair of the U.S. Climate Alliance – a bipartisan coalition of governors committed to fighting climate change. Among the commitments of the Alliance is the promise to build resilience to withstand the impacts of climate change. The Climate Superfund bill would further that goal. Unless the governor approves the legislation, the entire costs of climate change – which already total billions of dollars annually – will be borne solely by New York taxpayers. The bill shifts some of those costs to the companies most responsible for our worsening climate without those costs being passed on to the public. An independent economic paper published by the respected Institute for Policy Integrity at the NYU School of Law supports that view.

“EPA has made substantial progress in conducting EJ analysis,” New York University’s Institute for Policy Integrity Executive Director Burçin Ünel, told an Oct. 28 webinar hosted by Resources for the Future (RFF). There are now “a substantial portion of EPA rules [that] actually have quantitative [EJ] analysis,” she added. At the same time, though, Ünel and other researchers say the quality of such analyses may be falling short and urge EPA to expand those analyses in future rulemakings. For example, the results of the upcoming RFF study found that only 66 percent of the EJ analyses for economically significant rules over the last three administrations included a quantitative EJ analysis -- a key metric of their quality, the researchers say. In addition, consideration of the costs of the rules to EJ communities is still “limited,” Ünel says.

Derek Sylvan, strategy director at the Institute for Policy Integrity at New York University, said the tax credits have the potential to drive tremendous emissions cuts with hundreds of billions of dollars in benefits. But many, like the hydrogen credit, have the potential to be skewed in favor of fossil fuels or other polluting technologies. “That could be really huge,” Sylvan said. “You could imagine that for any particular tax credit, if that changes and suddenly a lot of funds are going to activities that have pretty limited or even negative climate benefits, that could certainly undermine the climate impacts of the IRA.”

Oil and gas companies and some renewable developers want more leeway in using fossil fuels to power this process, otherwise, they say, hydrogen projects won’t be built at all. But making the regulations too lax would mean some carbon-polluting projects would get the “clean hydrogen” tax credits, says Matt Lifson, an attorney at the Institute for Policy Integrity at NYU School of Law. “From an emissions, climate change perspective, it would not be a good thing,” he said. 

The Institute for Policy Integrity said the "novel approaches" being put forward by the petitioners and the federal government would promote "arbitrary analyses" inconsistent with the long-standing "reasonable foreseability" test required by NEPA, allowing agencies to disregard significant and foreseeable costs even as they tally indirect and uncertain benefits.

The tax credits require guidance issued by the Treasury Department to help define which projects are eligible. In the case of a clean hydrogen tax credit, a Trump administration could issue guidance that would skew the credit toward more polluting fossil fuel projects. For electric vehicles or wind and solar generation, new guidance could restrict how many vehicles or projects qualify for the credits or could simply cast uncertainty over the programs’ future, discouraging private investment. Derek Sylvan, strategy director at the Institute for Policy Integrity at New York University, said the tax credits have the potential to drive tremendous emissions cuts with hundreds of billions of dollars in benefits. But many, like the hydrogen credit, have the potential to be skewed in favor of fossil fuels or other polluting technologies.

“The most important thing about the guidance is that to the extent that it does improve the integrity of carbon credits underlying these derivatives, it could improve integrity in the voluntary carbon market,” said Erin Shortell, legal fellow at the Institute for Policy Integrity at New York University law school.