In the News

In one of the most high-profile environmental cases of the Supreme Court term, the justices—with Justice Alito recusing himself—will consider on December 10 the EPA’s 2011 rule for air pollution that drifts across states lines. The EPA asked the court to take the case after the U.S. Court of Appeals for the D.C. Circuit struck the rule down in August 2011. Policy Integrity director Richard Revesz expects the D.C. Circuit ruling will be reversed. “I don’t think it’s going to be one of those typical 5-4 or in this case 4-4 cases on ideological lines.” Meanwhile, down the street from the Supreme Court, the D.C. Circuit will hear a broad challenge from industry groups and several states to the EPA’s December 2011 mercury and air toxics standards for power plants.

EPA is on the right track in its effort to reduce greenhouse gas emissions, but on the wrong track in its insistence on using command-and-control style regulations and hand-outs to specific industries to do so. Instead of a biofuels mandate or any other command-and-control regulation, EPA should select the optimal goal—a lower level of carbon emissions from vehicle fuels—and let the market decide how best to get there. Set American ingenuity and industry to the task of cleaning up climate-change-causing pollution and we will certainly reach our goal.

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.