In the News

“I’m less optimistic about the court’s rulings in the next few years, given that the 6-3 majority seems intractable,” said Meredith Hankins, an attorney at the Institute for Policy Integrity. “Completely rejecting the idea … that these expert agencies should have the power to decide complicated questions — from an environmental/climate perspective — that’s incredibly depressing,” Hankins said. “The EPA is this expert agency that Congress has chosen to provide a lot of leeway to in issuing regulations, and if a judicial majority is going to refuse to recognize that expertise, there’s not much to be done at the margins.”

New York University School of Law professor Richard Revesz, who specializes in regulatory law and policy, spoke to Bloomberg Law about Breyer’s role in the Supreme Court’s handling of the major questions doctrine, how the doctrine has evolved, and a major environmental case set for oral argument Feb. 28 that gives the conservative justices a chance to further expand it. The following conversation has been edited for clarity.

Richard Revesz, who directs the New York University law school’s Institute for Policy Integrity calls President Joe Biden’s first year a “good beginning” with the “real test” coming this year. If significant progress is not made in 2022, it “becomes harder for rules to stick” in the second half of a term if Biden is not re-elected.

Investors focused on environmental, social and governance issues and progressives have urged the SEC to make companies report that information, while the U.S. Chamber of Commerce and other business groups have raised concerns about compliance costs. However, courts have recognized the SEC's authority to conduct such cost-benefit analysis, according to Jack Lienke, regulatory policy director at NYU's Institute for Policy Integrity, and legal fellow Alexander Song in a legal analysis released last week on a potential climate disclosure rule.

In regulatory policy, as in life, calculating a potential action’s costs is an important step in determining whether to take that action. Identifying these costs without giving them a place in the decisionmaking, however, would be irrational, and undermines the purpose of calculating the costs in the first place. And yet this is precisely the approach the Department of the Interior (Interior) has taken in analyzing recent proposals to lease public lands and waters for fossil fuel development.

The Federal Trade Commission is accepting public comments on a proposal made by New York University academics on banning so-called “drip pricing” in ticket purchasing. “A ban on hidden fees and drip pricing would represent a huge win for consumers and improve the functioning of markets where the practice has taken root,” said Max Sarinsky, a senior attorney with the Institute in an op-ed published by the New York Times last summer. “For the commission’s new majority, which is eager to protect consumers, such a regulation should be a high priority.”

As the Federal Transit Administration and its partners roll out electric transit across the country, the agency should ensure that its Title VI guidelines for funding recipients explicitly require nondiscrimination in the distribution and routing of such clean vehicles. FTA should also implement the appropriate reporting requirements to effectively monitor the distribution of electric vehicles and their air quality benefits. These recommendations are discussed in more detail in our comments to the agency.

The argument made by BOEM at the time was that a decrease in federal oil and gas activity would be replaced by imports from foreign producers, and generally those imports could come from areas with a higher carbon imprint from production. Max Sarinsky, an attorney at the Institute for Policy Integrity at the New York University School of Law, told lawmakers that BOEM’s old finding flew in the face of economic principles.

On Thursday, the Subcommittee on Energy and Mineral Resources hosted a remote oversight hearing titled, “What More Gulf of Mexico Oil and Gas Leasing Means for Achieving U.S. Climate Targets.” Witnesses included Policy Integrity's Max Sarinsky. The recording is available here.

To address perceived market concentration across the economy, the FTC under Chair Khan plans to examine how to define “unfair methods of competition” under Section 5 of the FTC Act in an attempt to root out perceived anticompetitive practices. In addition to the proposed Trade Regulation Rule on Commercial Surveillance, the FTC is also actively seeking comment on the following: A petition from the Institute for Policy Integrity asking the FTC to regulate “drip pricing.” The petition describes “drip pricing” as “the practice of advertising only part of a product’s price upfront and revealing additional charges later as consumers go through the buying process.”