In the News

West Virginia Attorney General Patrick Morrisey has signaled that he plans to take a page from his recent Supreme Court climate win to challenge the Securities and Exchange Commission’s proposed rule for funds that are marketed as socially and environmentally responsible. New York University’s Institute for Policy Integrity has argued in comments that the SEC has required companies to report other environmentally related risks, including litigation involving companies and the federal government, dating back to the 1970s because such information “could signal wider-spread financial risk.”

The Inflation Reduction Act marks the most significant federal action on climate change yet, with about $370 billion of the $433 billion package teed up for green investments across the country. The IRA includes a slew of tax credits, grants, rebates and financing opportunities to encourage individuals, businesses and local governments to transition to greener energy and greater efficiency. “States that are prepared, that are well positioned, are going to be able to take advantage of this bill better than others,” said Justin Gundlach, a senior attorney at NYU School of Law’s Institute for Policy Integrity. “New York is very, very well positioned to do that.”

Shortly after his inauguration, President Biden promised to reduce climate pollution in every sector of the economy. One obstacle to achieving this goal: the Trump Administration. Although President Trump is no longer in office, the way the Trump Administration approached Obama-era regulations may have developed a blueprint for states and industry groups to challenge climate regulations adopted by the Biden Administration, warn Richard L. Revesz of NYU School of Law and Natasha Brunstein, a student at Yale Law School. Revesz and Brunstein argue that the Trump Administration manipulated what lawyers and judges have come to refer to as a “major questions” doctrine to justify striking down any regulation it disfavored.

A recently introduced bill aiming to prevent federal agencies from considering the Social Cost of Greenhouse Gases highlights the role some bills play in informing — and sometimes misinforming — the public. Though almost certainly destined to fail, the bill presents faulty and misleading criticisms that could have chilling effects on important policy evaluation efforts.

The ruling [West Virginia v. Environmental Protection Agency (EPA)] is a blow to climate action and could signal the court’s hostility to a wide range of future regulations within and beyond the climate and environmental sphere, including those related to consumer protection and worker safety. Although the immediate effects on US climate policy aren’t pervasive, EPA now needs to evaluate the emissions-reduction potential and legal risks of alternative regulatory approaches for the power sector.

Transmission issues are the most common challenge, if not the most daunting, experts say. As such, states with steep clean energy goals need to make sure they're not just building fast, but building the right kind of transmission infrastructure, Justin Gundlach of the Institute for Policy Integrity told Law360. On top of that, developers need to make sure they're displacing legacy generation from coal or natural gas, he added. "It's great building renewables, but are they building the right kind of transmission in the right places that de-bottleneck access so that when they run, they displace emitting resources?" Gundlach said. "It's not just a matter of building a transmission line to a renewable facility — it's also a matter of reconfiguring your system so you are assured … you are able to deliver the power they generate wherever there is demand, and by doing so, you make them available to compete against a likely expensive, higher-emitting legacy system."

"Drip pricing is really not good for anyone — it creates a race to the bottom, where all ticket sellers feel like they have to advertise deceptively low fees or they'll lose out to those who do," said Max Sarinsky, a senior attorney at the Institute for Policy Integrity at New York University. "It's not the kind of problem that can solve itself, because it requires all actors to behave well." Last year, the institute asked the Federal Trade Commission, which has the authority to crack down on misleading and deceptive business practices, to ban drip pricing. Its petition garnered support from a number of consumer rights groups and event ticket sellers.

In response to investor demand, the SEC recently proposed a rule that would require publicly traded companies to share information about their exposure to climate-related financial risks. However, this common-sense rule is not without controversy. Since the Supreme Court applied the major questions doctrine in an important climate decision a few weeks ago, critics of the proposed rule have been arguing that it is relevant here too. But the climate-risk disclosure rule is clearly outside of the scope of the major questions doctrine. Far from being transformative or extraordinary, the SEC’s proposed rule is a run-of-the-mill use of the SEC’s authority with ample precedent.

Why would the Court’s conservative majority bother striking down a dead rule? There are two potential reasons—one that creates a barrier for future power-sector rules, and another that looms as a potential threat to a broader swath of other climate and public safeguards.

In October, the Supreme Court will start swinging a conservative legal sledge hammer called the “major questions doctrine,” at every government sector that traffics in regulation. “The major questions doctrine didn't exist until fairly recently, but in the last year or so, the Supreme Court has made it a regular part of its anti-regulatory arsenal,” Richard Revesz of the Institute for Policy Integrity at NYU Law School told the Washington Post last week. “As a result, I am sure that enterprising attorneys general for red states will use it to challenge climate regulations, environmental regulations and all kinds of other regulations.”