In the News

Two clean energy companies have signed deals with the Empire State that could provide New York City with as much as a third of its electric needs each year from solar, wind and hydroelectric sources. But some predecessors have encountered road blocks in their quest to build out the massive infrastructure necessary to deliver the renewable energies to major load centers. Justin Gundlach, a senior attorney at the Institute for Policy Integrity at New York University, told Law360 on Wednesday that New York may not encounter that level of difficulty. He noted that the state already underwent a lengthy process before the Champlain Hudson Power Express — a proposed high-voltage direct current submarine line linking Montreal to New York City — began construction earlier this year. 

With experts worldwide calling on governments to transition away from fossil fuels to prevent catastrophic levels of climate change, the Biden Administration is in the midst of reconsidering the federal government’s oil, gas, and coal leasing programs. Reforms to these programs could bring U.S. energy policy closer in line with climate reality by reducing the extraction of fossil fuels from public lands.

A top White House official says the Biden administration is planning to review under the National Environmental Policy Act (NEPA) various federal programs as a way to help speed later review of related low-carbon projects, an effort aimed at easing the challenge officials face as they seek to expedite such projects while also ensuring rigorous reviews. The White House Council on Environmental Quality (CEQ) is looking at “ways that programmatic analysis can be used more frequently and effectively by federal agencies,” Jayni Foley Hein, CEQ’s senior director for NEPA, said Oct. 19.

Was there another choice for DOI? Yes. The Louisiana decision “doesn’t force the administration to move forward with any particular lease sale,” Max Sarinsky of the New York University School of Law told The Guardian, though he added that if the sale were postponed, “I’m almost certain they would be sued by oil and gas interests.”

Just four days after landmark climate talks in Scotland in which Joe Biden vowed the US will “lead by example” in tackling dangerous global heating, the president’s own administration is providing a jarring contradiction – the largest ever sale of oil and gas drilling leases in the Gulf of Mexico. But legal experts say the court decision doesn’t, in itself, prevent the administration from stopping or delaying a scheduled lease sale, or from scaling it back. “The Louisiana opinion doesn’t force the administration to move forward with any particular lease sale – the Department of Interior still has discretion over that,” said Max Sarinsky, a senior attorney at the New York University School of Law. “If they were to postpone, I’m almost certain they would be sued by oil and gas interests, but that’s another matter.”

Without a doubt, all environmental rules will be challenged in court and former President Trump dramatically increased the number of conservatives in courts around the country. “From what I’ve observed, [the Biden administration is] being careful,” noted Ricky Revesz, a professor at New York University. “The question isn’t if they get sued. It is what is the probability of winning after litigation.”

Some legal and regulatory experts are skeptical that EPA’s methane rules — once they are finalized — could be the best path for the red states to reinvigorate their challenge to the Biden administration’s emissions metric. "I don’t think EPA would have much to worry about on the social cost of greenhouse gases front," said Richard Revesz, a law professor and director of New York University’s Institute for Policy Integrity. But he noted that any EPA rule of "any consequence" is going to be challenged in court.

Critics of PJM’s minimum price argued that it increased costs to consumers by imposing a barrier for renewable energy. Wind power has been able to bid well below other sources of electricity in competitive markets. “[The] indiscriminate treatment of all state policies as inefficient and uneconomic was both legally inappropriate and economically unsound,” said Sarah Ladin, an energy attorney at the Institute for Policy Integrity at New York University School of Law.

The bipartisan infrastructure bill clarifies FERC’s authority by giving the commission the ability to overturn state objections, transmission analysts said. “This clarifies the scope of preemptive authority available to FERC,” said Justin Gundlach, a senior attorney at New York University School of Law’s Institute for Policy Integrity. “In my corner of the world it is a meaningful policy change.”

The new methane rule goes beyond merely undoing the damage of the Trump years. The proposal is broader than its Obama-era predecessors, and once finalized, will apply to hundreds of thousands of previously unregulated emission sources, like wells, storage tanks, and compressor station. That is because unlike the prior standards, Biden’s rule will cover equipment of all ages.