In the News

According to New York University’s Institute for Policy Integrity, the Trump administration won only 23 percent of legal challenges to its agency actions (which were almost entirely deregulatory), compared to a success rate of about 70 percent defending agency actions in previous administrations. 

Environmentalists are warning that if the Supreme Court ends the long-standing Chevron doctrine, as is widely expected after Jan. 17 arguments, it will result in significant policy uncertainty as courts conduct heightened scrutiny of EPA and other agency rules while Congress is unable to provide detailed legislation that such an approach requires... Donald Goodson of the Institute for Policy Integrity at New York University tells Inside EPA that the high court should have dismissed Loper and just heard Relentless, which is “the obviously better vehicle” because all nine justices can participate.

As 2023 drew to a close, EPA sharply increased its estimates for what climate change costs society. A higher carbon value can help tip the scales in favor of a stronger regulatory option that delivers greater net benefits... “Agencies often leave a more stringent option on the table, even if their own analysis finds that it would yield greater net benefits,” said Max Sarinsky, a senior attorney at the Institute for Policy Integrity at New York University School of Law.

Utility regulators now face the challenge of ensuring that the energy utilities they oversee do their parts to effect the energy transition, while continuing to provide safe and adequate service at just and reasonable rates. Moreover, they need to accomplish all this while assuring fairer outcomes for communities that have in the past been persistently and disproportionately harmed by energy infrastructure decisions.

Donald Goodson of the Institute for Policy Integrity at New York University says the Chervon and APA cases, taken together, could have even more of an impact than in isolation. That is because if the Supreme Court overturns or narrows Chevron and then extends the statute of limitations under the APA, that could open up old rules to new challenges, creating massive uncertainty.

By establishing commonsense measurement rules for the emissions intensity of electrolytic hydrogen, Treasury’s NOPR goes a long way towards ensuring that we don’t accidentally subsidize fossil-fuel-powered electrolysis. Without these rules, it would be easy to confuse fossil-fuel-powered electrolysis with renewables-powered electrolysis. If that were to happen, the most significant climate law in U.S. history would have the perverse effect of subsidizing hydrogen that causes twice as many emissions as the old method of steam methane reforming.

Companies face growing financial risks from climate change. Around the world, investors are demanding more consistent, comparable, and reliable information about these risks so that they can make informed investment decisions. Regulators are listening. In March 2022, the Securities and Exchange Commission (SEC) proposed a rule that would require public companies to include in certain SEC filings specific climate-related disclosures. The SEC might finalize these requirements any day now. In the meantime, California and the European Union (EU) have adopted their own climate-related disclosure regimes. These new regimes require many of the same disclosures and cover many of the same companies as the SEC’s proposed rule.

The practice of partition pricing and marketing has become a topic of interest for the FTC and the CFPB. For example, the FTC recently streamlined procedures to “tackle cutting-edge issues, like … unfair and deceptive practices in event ticket sales, among others,” according to Commissioner Rebecca Kelly Slaughter. Additional efforts across states are being made to encourage the FTC to ban the use of drip pricing. For example, the Institute for Policy Integrity at New York University School of Law has petitioned the FTC to ban drip pricing practices. The petition argues that sellers should be required to disclose the “full” price of a product or service up front as a single total price, including all unavoidable fees and charges.

The Supreme Court justices have made clear that they intend to use Relentless vs Department of Commerce and Loper Bright Enterprises vs Raimondo to reconsider a seminal decision that has set the rules for legal challenges to federal regulation since 1984. Under the Chevron doctrine, as it is known, courts defer to an agency’s interpretation of federal law when Congress itself has been silent. Don Goodson, a senior attorney at New York University’s Institute for Policy Integrity, warns that businesses should be careful what they wish for. “There are good legal reasons for Chevron and there are good practical reasons . . . Inevitably, federal statutes are sometimes ambiguous,” he says. If different courts reach different conclusions, that could lead to conflicting rules in various parts of the country. “If you are a regulated entity, the question is: do you want one interpretation or several? That may have headaches of its own,” he adds.

The Environmental Protection Agency (EPA) this weekend took action that is expected to justify stricter climate regulations. Max Sarinsky, a senior attorney at New York University’s Institute for Policy Integrity, said that technically, a future president could prevent agencies from using the Biden administration’s social cost values “with the stroke of a pen.” But he also said that doing so could make any rules issued by that administration legally vulnerable.