In the News

While reading Isaiah McKinney’s recent piece on Chevron v. Natural Resources Defense Council, I was struck by how different people can see the exact same facts and yet draw such wildly different conclusions from them. Where McKinney sees a problem with lower courts’ applying Chevron while the Supreme Court has relied on it less in recent years, I see lower courts doing exactly what they should be doing: Following Supreme Court precedent until a majority of the Court overrules it.

One of the most important features of West Virginia’s articulation of the major questions doctrine—and perhaps the feature most overlooked—is that it is not a clear-statement rule. At least not yet. Even though the West Virginia majority ultimately agreed with the petitioners that EPA lacked authority to issue the Clean Power Plan under the major questions doctrine, the majority did not use the petitioners’ framework and never used the phrase “clear statement” in its legal analysis.

Multiple Republican senators are preventing quick passage of President Joe Biden's nominee to run his White House regulations bureau. Senate Environment and Public Works ranking member Shelley Moore Capito objected Tuesday to confirming New York University environmental law professor Richard Revesz to lead the Office of Information and Regulatory Affairs, or OIRA, by voice vote.

Revesz is a leading expert on environmental policy and regulation. He is the AnBryce Professor of Law and Dean Emeritus at New York University School of Law. He founded, and led for more than a decade, the Institute for Policy Integrity, a think tank and advocacy organization that promotes desirable climate change and environmental policies. Revesz was elected to The American Law Institute in 1991 and has served as the Institute’s Director since 2014.

A law professor for more than 30 years, Revesz specializes in climate change and regulation. He will also oversee Biden’s promise to tame the sway of corporations over US regulations and increase the influence of Americans of color and low-income people. He said in his confirmation hearing that he supports a traditional approach to evaluating regulations and wouldn’t completely overhaul past calculations.

The Senate approved Richard Revesz’s nomination by voice vote to be administrator of the Office of Information and Regulatory Affairs, housed within the White House Office of Management and Budget, which oversees the regulatory process across the government, approves government information collections, establishes government statistical practices and coordinates federal privacy policy. Revesz “is one of the nation’s leading voices in the fields of environmental and regulatory law and policy,” said the announcement from the White House in September when President Biden nominated him.

By filing an amicus brief on Wednesday, the Institute for Policy Integrity challenged the American Petroleum Act's arguments that the Outer Continental Shelf Lands Act bars the Department of Interior from considering nonlocal environmental effects resulting from offshore development. In the brief, IPI urged the D.C. Circuit to uphold the district court's ruling that the Bureau of Ocean Energy Management violated NEPA and to reject arguments that the Inflation Reduction Act moots the issue of whether Lease Sale 257 violated NEPA.

The Institute for Policy Integrity is urging officials to create granular assessments of emissions tied to grid electricity used to generate hydrogen, while also placing robust requirements on the use of renewable energy credits to offset emissions from such power.

The government has consistently undercounted the societal benefits of reducing climate pollution when assessing regulations and other policies, tipping the scales toward polluters over people. The U.S. Environmental Protection Agency (EPA) took a critical step to correct this problem by proposing a comprehensive update to the social cost of carbon. Consistent with the scientific and economics literature from independent researchers, the update would raise the metric’s central value from $51 to $190 for each ton of carbon-dioxide emissions in 2020.

Regarding the implementation of the EPA's social cost proposal, “If another agency were hypothetically to rely on EPA’s valuations in the future, that could be challenged. And that challenge would not be bound by the Clean Air Act’s jurisdictions,” said Max Sarinsky, senior attorney at the Institute for Policy Integrity at the New York University School of Law. He added that other courts wouldn’t be bound by any prior D.C. Circuit decision on the matter either.