In the News

“California gets to experiment,” said Meredith Hankins, a senior attorney at the Institute for Policy Integrity at the New York University School of Law. “They get to go first and explore how much can we reduce emissions. ... It’s a very well-established provision, and now red states are arguing that it’s unconstitutional.”

The Supreme Court has rejected an emergency request to block the Biden administration’s use of a key climate metric, effectively preserving federal agencies’ ability to account for the costs of heat-trapping emissions — at least for the time being. Max Sarinsky, a senior attorney with the Institute for Policy Integrity at New York University School of Law, said he was not surprised by the high court’s decision. The institute had filed a friend of the court brief in the appeals court, arguing that the administration’s metric was based on research and evidence. He added that the district court “badly misapplied bedrock constitutional principles about the role of federal courts,” and its injunction was swiftly lifted. Sarinsky said the ruling allows federal agencies to continue to apply available climate damage valuations to help write policy (Climatewire, May 26).

Rachel Rothschild, a legal fellow with the Institute for Policy Integrity, said fossil fuel companies are sure to sue if the state enacts the legislation. Rothschild’s legal research provided the basis for the proposed legislation, and she says one major legal question likely to arise in court is jurisdictional. In a memo to state legislators, Rothschild cites various cases in the hazardous waste context that she says suggest “that a state can exercise jurisdiction over a polluter simply because it discharged harmful substances into the forum state” and can therefore aid New York’s ability to assert jurisdiction over foreign or out of state companies.

The impact of removing the social cost of greenhouse gas figures from the Biden administration’s arsenal might not hobble future climate rules. Losing the social cost of carbon “would complicate things,” said Max Sarinsky, a senior attorney with the Institute for Policy Integrity at New York University Law School. “But it would not be fatal. Climate regulation would continue.”

“Those who think ESG investing is all surface and no substance should welcome the Commission’s effort to provide investors in ‘green’ or ‘socially responsible’ funds with clear and comparable information about where their dollars are going and why,” Jack Lienke, who directs regulatory policy at New York University’s Institute for Policy Integrity, said in a statement. “And those who think ESG investing is a reliable means of maximizing long-term returns,” he added, “should welcome this effort to expose greenwashing and increase investor confidence in legitimate ESG claims and products.”

The growing threat of power outages fueled by extreme weather calls for new approaches to grid oversight, the head of the Federal Energy Regulatory Commission said yesterday, adding that utilities and grid operators should “think differently.” Sarah Ladin, an attorney at the Institute for Policy Integrity at the New York University School of Law, said FERC should “deeply scrutinize” the emissions estimates provided by project applicants, even in cases where a new gas project would replace a higher-emitting coal power plant. In general, many coal plants across the United States are closing due to market changes, she added.

The agency last year also withdrew the Trump EPA’s other last-minute denials of petitions that sought a more expansive Clean Air Act to battle climate change. Environmental and public interest groups behind those petitions, however, remain in limbo. “We have not heard anything more on this since we received the withdrawal of the denial,” said Derek Sylvan, a spokesperson for the Institute for Policy Integrity, based at the New York University School of Law. The institute petitioned EPA to regulate greenhouse gas emissions under Section 115 of the Clean Air Act.

New York University’s Institute for Policy Integrity and the Energy Department (DOE) are hosting a May 11-12 conference to bolster steps to “help make deep decarbonization efforts more consistent with the tenets of energy justice.” Speakers include Shalanda Baker, DOE’s deputy director for energy justice.

CRA, aka the Congressional Review Act, became law in 1996 to provide a mechanism through which the U.S. Congress could repeal recently adopted Executive Branch rules and regulations, with simple majority votes in both the House and the Senate. Professor Richard Revesz of New York University School of Law has a different take on things. “It would be wrong … to say that this result [meaning the limited use of the CRA] confirms Democratic antipathy to the CRA,” Revesz has written. “Quite to the contrary, for the first time in its history, the CRA was invoked to disapprove regulations promulgated by a prior Republican administration. And the Biden administration found ways to rid itself of the five offending regulations [that Revesz had previously highlighted as particularly egregious] without needing to avail itself of either the CRA or of lengthy notice-and-comment rulemaking.”

In its Phase 2 rulemaking, CEQ can better clarify agencies’ existing responsibilities under NEPA to consider climate change impacts. The six recommendations in our “Ensuring Robust Consideration of Climate Change Under NEPA” policy brief are summarized in this post.