In the News

EPA’s Science Advisory Board (SAB) is urging the agency to begin to systematically quantify the environmental justice (EJ) benefits of its air pollution rules, a potentially sweeping recommendation that could help the agency justify stricter controls on mobile and stationary sources. The recommendation is spelled out in a Sept. 27 draft SAB report on EPA’s proposed phase 3 heavy-duty truck and engine rule recently posted to the board’s website ahead of a Nov. 3 meeting where the advisors are slated to discuss it. Meredith Hankins, an attorney with the Institute for Policy Integrity (IPI) at New York University law school, said it was noteworthy that the proposed rule included the first-time distributional impact analysis evaluating baseline conditions as well as the results if the proposed rule’s more stringent option were implemented.

Millions of Americans are still reliant on gas combustion for their furnaces, water heaters, clothes dryers, fireplaces, stoves, and ovens, not realizing the pollution they create both indoors and outdoors because of it. Gas appliances have fallen through the cracks of federal regulation in part because the EPA sees the Clean Air Act as charging it with overseeing outdoor air. “There’s no equivalent clean indoor air act,” said New York University’s Jack Lienke, co-director of the Institute for Policy Integrity and a co-author of a history of the EPA law.

A new report from several progressive groups urges EPA and other agencies to take “more and bolder risks” on greenhouse gas and other rules in response to the Supreme Court’s embrace of the major questions legal doctrine, underscoring debates on whether strategic caution or a “flood-the-zone” strategy is the best response for backers of strong regulation. For example, Earthjustice attorney Kirti Datla during an Institute for Policy Integrity event last month partially downplayed West Virginia as “a unique case” over the Obama administration’s specific Clean Power Plan -- suggesting that a variety of agency regulatory efforts in areas including vehicles and methane are unlikely to trigger similar scrutiny. But she also cited “deep thinking” going on within the environmental community on how to respond to West Virginia, including on what information needs to be before” agencies like EPA in the wake of the decision.

Last but not least, the Court’s decision in West Virginia v. EPA impedes governmental power to address the most difficult and threatening problem that humanity has ever faced: global climate disruption. Once again, the Court undercuts the ability of government to preserve the right to life of present and, in this case, future generations. Professor Richard Revesz confirms that the new major questions doctrine announced in West Virginia, and effectively applied in an earlier case National Federation of Independent Business v. Department of Labor, “casts an ominous pall over the nation’s regulatory future.” Even though Congress acted in August to re-empower the EPA by adopting a statute overturning the effect of West Virginia with respect to the agency’s authority to regulate greenhouse gases, the new major questions doctrine will continue to impede effective climate and other health-related policies.

EPA’s timeline for power-sector regulations has slipped since the start of the Biden administration, causing some environmentalists to worry that the rules could more easily be removed if Republicans win the White House and Congress in 2024. “I think what we're seeing is the Biden administration take the time to be deliberate, to develop the regulatory record to make sure the regulations that they finalize can withstand the inevitable litigation,” said Carrie Jenks, executive director of the Environmental & Energy Law Program at Harvard Law School. An April analysis by the Institute for Policy Integrity at New York University School of Law found that legal defeats caused 192 Trump-era rules to be rescinded on topics as diverse as the environment, immigration and worker protections. Richard Revesz, who directs IPI, has since been tapped as Biden’s regulatory czar.

The Bureau of Ocean Energy Management (BOEM) released its long-awaited 2023–2028 Proposed Program for offshore oil and gas leasing earlier this summer. Unlike previous five-year plans, the Proposed Program does not declare a “preferred” schedule of lease sales, leaving open the possibility of scheduling anywhere from zero to eleven sales. BOEM’s decision, expected in the coming months, rests on how it balances the nation’s energy needs — including its assessment of the environmental impacts of leasing.

Some advocates support Revesz’s nomination given that he is a long-time New York University law professor who founded the school’s Institute for Policy Integrity that often supports protective EPA standards. Revesz’ nomination is also winning support from a host of bipartisan legal academics and others, who sent a recent letter to the Senate committee “in enthusiastic support of his nomination.”

The Inflation Reduction Act (IRA) includes the most significant investment in climate that Congress has ever made. Getting input from a range of relevant stakeholders will help Treasury and the IRS ensure the IRA meets its goals. Building off Mike Kaercher’s remarks at the Institute for Policy Integrity’s conference A New Era of Climate & Energy Policy, this post provides a brief overview of the climate provisions, discusses the importance of public interest stakeholder contributions in implementing them, and presents two examples of high-priority projects that could benefit substantially from public interest stakeholder input.

President Biden’s nominee to become the Administrator for the Office of Information and Regulatory Affairs (OIRA) at the Office of Management and Budget (OMB) – told senators at a September 29 nomination hearing that he is targeting updates to existing regulatory analysis standards if he is confirmed to the new post. At a Senate Homeland Security and Governmental Affairs Committee hearing, Revesz talked about pushing forward ongoing efforts to update OMB’s Circular A-4, which guides development of regulatory analysis, but which has not been updated in 20 years.

Revesz's writings point out that costs and benefits may hit different classes and races differently. Suppose costs were imposed mainly on the poor (which is the history of the failure to regulate pollutants) while benefits went to the rich. And suppose a regulation reversed that pattern. Distributional analysis would show that it is well worth enacting, in contrast to traditional cost-benefit analysis, which looks at averages or, worse, values the life of a poor person as worth less than the life of a rich one. Revesz, assuming he is confirmed, will soon get the chance to put these revolutionary concepts into practice.