In the News

There has been so much discussion about climate by financial regulators since Biden took office that it has “frankly been difficult to keep up with the steady stream of policy developments in this area,” said Jack Lienke, regulatory policy director at the NYU School of Law’s Institute for Policy Integrity. “Requiring disclosure of potential climate harms is, to be sure, no substitute for seeking to prevent those harms through greenhouse gas reductions, or for taking steps to protect vulnerable communities from climate effects,” Lienke said. “But it can inform those necessary efforts.”

The new rule—which required a quick turnaround from the Biden administration—comes after courts struck down updates from 2016 and 2019 for not providing a full remedy that would help northeast states manage summertime smog. "The Obama administration's 2016 update issued this concededly partial remedy that didn’t actually achieve attainment with the 2008 ozone NAAQS,” said Jack Lienke, Institute for Policy Integrity regulatory policy director.

It's unclear whether EPA is actively considering such a standard for carbon dioxide and other climate pollutants. But early this month, Jane Nishida, who served as the acting EPA administrator, issued a brief retraction of the Trump administration's eleventh-hour denial of the Center for Biological Diversity and 350.org's petition proposing that EPA establish the sweeping health-based standards. She issued similar retractions of other last-minute denials of petitions for proposed regulations submitted by the New York University School of Law's Institute for Policy Integrity and Food & Water Watch.

Democrats said yesterday they are still considering using the Congressional Review Act to quickly kill Trump environmental rollbacks. Richard Revesz, a New York University professor whose name has been floated as a possible head of the White House regulatory shop, noted that CRA disapprovals are a "very powerful tool" that speeds up the rule-killing process. But he added that the resolutions "can take up to 10 hours of Senate debate time — a limited commodity during the relatively short period." He said, "The decision on how to best allocate Senate time is therefore a complex one."

The National Environmental Policy Act requires full disclosure of the social cost of carbon associated with any major project on federal lands but not a rigorous cost-benefit analysis, said Jason Schwartz, legal director for the Institute for Policy Integrity at NYU. That could force Interior officials to make a judgment call, he said. “Then it’ll be up to the agency officials to figure out, does this impact call for some mitigation under NEPA?” Schwartz said. “Or does it mean the no-action alternative?” Interior could use the social cost of carbon to justify adjusting state royalty rates for oil, gas and coal development based on their environmental and social impacts, he said.

Another supporter of the approach is Jason Schwartz, legal director of New York University’s Institute for Policy Integrity, which submitted a 2013 petition asking EPA to use its authority to regulate foreign emissions under section 115 of the air law. The Trump EPA denied that petition in the same letter denying CBD’s. Schwartz tells Inside EPA that section 115 “is one of several tools that could be appropriate for addressing climate change. And we’re pleased that EPA now seems to be prioritizing careful analysis on matters like this, in contrast to the Trump administration’s rushed approach done behind closed doors.”

University of Virginia law professor Michael Livermore and Richard Revesz ’79, a professor of law and dean emeritus at New York University, co-authored Reviving Rationality: Saving Cost-Benefit Analysis for the Sake of the Environment and Our Health. The book asserts rigorous cost-benefit analysis is essential in light of the Trump’s administration’s environmental policies, which “destabilized the decades-long bipartisan consensus that federal agencies must base their decisions on evidence, expertise, and analysis.”

“My immediate reaction is that these states should have a very hard time convincing a judge that a President asking his agencies to work together, to engage with the public and stakeholders, and then to follow the best available science and economics to evaluate the consequences of their decisions, is somehow illegal,” Jason A. Schwartz, legal director of the Institute for Policy Integrity at New York University, told Bloomberg Law.

Twelve states filed suit in the U.S. District Court for the Eastern District of Missouri, accusing President Joe Biden of exceeding the executive branch’s power in restoring Obama-era values for an analytical tool called the social cost of greenhouse gases. “My immediate reaction is that these states should have a very hard time convincing a judge that a President asking his agencies to work together, to engage with the public and stakeholders, and then to follow the best available science and economics to evaluate the consequences of their decisions, is somehow illegal,” Jason A. Schwartz, legal director for New York University’s Institute for Policy Integrity.

Some supporters of the Trump “transparency” policy attributed the loss to judicial bias, and the environmental groups’ move to file their challenge in a state, Montana, which has no Trump-appointed federal judges. But Richard Revesz, director of the Institute for Policy Integrity at New York University Law School, said that the Trump administration’s legal errors were “sufficiently egregious that it’s likely that any judge would have struck it down.”