In the News

Balanced anti-capture review needs to correct for the wide range of effects that outside pressure can have on agency decision making. Limiting review to agency action places an entrenched bias at the heart of OIRA review, sapping normative force from its anti-capture justification. To remedy this problem, we propose a mechanism to review inaction through review of petitions for rulemakings that have been submitted to agencies, but which have been denied or have languished.

The U.S. Supreme Court upheld the EPA’s fundamental Clean Air Act authority to regulate greenhouse gases when it agreed to hear only a narrow challenge to the agency’s various greenhouse gas regulations, panelists said at a forum. Environmental groups and the EPA “got 98 percent of what they wanted” from the Supreme Court’s decision, Richard Revesz, director of the Institute for Policy Integrity at the New York University School of Law, said at an Oct. 30 forum sponsored by his organization.

When Clean Air Act amendments were enacted in 1990, the new statutory language contained a rare glitch. Two different and contradictory amendments to Section 111(d) — one from the House, the other from the Senate — were never reconciled in conference, but instead passed both chambers and both became enrolled into law. Michael Livermore, senior adviser at New York University’s Institute for Policy Integrity, said the courts are likely to defer to the EPA on its interpretation of the statute, rather than try to mine the law’s language for congressional intent.

When Clean Air Act amendments were enacted in 1990, the new statutory language contained a rare glitch. Two different and contradictory amendments to Section 111(d) — one from the House, the other from the Senate — were never reconciled, but instead passed both chambers and both became enrolled into law. Michael Livermore, senior adviser at New York University’s Institute for Policy Integrity, said the courts are likely to defer to the EPA on its interpretation of the statute, rather than try to mine the law’s language for congressional intent.

The Supreme Court allowed a narrow review of a U.S. EPA greenhouse gas rule yesterday, upholding most of the agency’s landmark climate change decisions while still challenging EPA’s authority in what could be the most important climate change case since 2007’s Massachusetts v. EPA. Richard Revesz, director of New York University’s Institute for Policy Integrity, said that nothing the court would decide would carry over to EPA’s efforts to craft standards for new and existing power plants, which will roll out in accordance with President Obama’s Climate Action Plan.

The U.S. Supreme court will review whether the Environmental Protection Agency’s decision to regulate greenhouse gas emissions from vehicles necessarily triggers similar Clean Air Act requirements to regulate stationary sources. Several attorneys said the Supreme Court’s ruling is unlikely to affect the EPA’s authority to issue carbon dioxide performance standards for fossil fuel-fired power plants. The EPA proposed new source performance standards for new power plants on Sept. 20, and President Obama has ordered the agency to propose similar standards for existing units by June 2014. “Nothing that happened today raised any question about EPA’s authority to do any of that,” Richard Revesz, director of the Institute for Policy Integrity at the New York University School of Law, told reporters.

The Supreme Court on Tuesday agreed to review whether the Environmental Protection Agency has the power to require greenhouse gas permits for big, stationary pollution sources such as power plants, factories and refineries. “By deciding to review only one narrow permitting question from an expansive D.C. Circuit opinion upholding EPA’s power over greenhouse gas emissions, the court leaves intact EPA’s ability to regulate climate-altering pollution from both stationary and mobile sources,” said Professor Richard Revesz of the Institute for Policy Integrity at New York University’s law school.

by Richard Revesz and Michael Livermore
This morning, the Supreme Court handed a significant victory to the President and to EPA. The justices let stand the foundational element of the EPA’s greenhouse gas regulations — the scientific finding that these gases “endanger” public health — as well as the agency’s ambitious controls on trucks and automobiles.

Climate change is certainly on the top ten list of our planet’s biggest problems. Also on that list is the insufficient actions humans have taken to address climate change. The risks of increased global temperatures are great, as the IPCC’s recent report release shows, and too many nations, including the United States, have not properly heeded the warnings by taking serious steps to reduce their greenhouse gas output.

The next set of EPA rules also face legal uncertainty. The provision of the Clean Air Act used for greenhouse gas regulation has been rarely used before, and never for an area this far-reaching, said Michael Livermore, professor of law at University of Virginia and senior adviser at the Institute for Policy Integrity in New York.