In the News

The Western Energy Alliance, a trade group representing fossil fuel companies operating on federal lands, filed a lawsuit against Biden’s order on Wednesday, saying it was an overreach. But Jayni Foley Hein, natural resources director for the Institute for Policy Integrity at the New York University School of Law, countered that the order is legally sound and was “written very carefully to avoid legal risk.” “It smartly pauses all new leasing, which Interior can do pursuant to multiple laws, and leaves the door open to more permanent curtailment in the future,” she said.

The Trump administration lost or withdrew proposed rule changes in almost 80% of 109 court challenges tracked by the Institute for Policy Integrity at New York University law school. Past administrations have lost or backed down in 30% of cases, said adjunct professor Bethany Davis Noll, who helped compile the data.

The recent history of developing long-haul pipelines in the U.S. demonstrates what can happen when certain bottlenecks go unaddressed, according to Justin Gundlach, a senior attorney with New York University School of Law's Institute for Policy Integrity. "You would absolutely see people who don't like transmission lines use NEPA to say that the agency responsible for siting this transmission line has failed to take the requisite hard look at the impacts, etc., etc. — no question," he said. Gundlach co-authored a recent study that outlined steps FERC could take to facilitate more long-distance, high-voltage direct-current electric transmission lines without waiting on additional legislation.

It will help Mr Biden that the Trump administration was not very adept at administrative law. A tracker by the Institute for Policy Integrity, a think-tank housed at New York University law school, found that 80% of lawsuits against the Trump administration’s regulatory changes were successful. Under a typical administration, that number is only 30%. With a second term, Mr Trump might have waited out some legal challenges and seen his changes to regulation become more entrenched. Yet “because Trump was a one-term president, his whole regulatory output is very shaky, and little of it will survive,” says Richard Revesz of NYU.

A recent report from Columbia University’s Center on Global Energy Policy and New York University’s Institute for Policy Integrity looked at how the Energy Department and other regulators might use certain tools to help expand the nation’s transmission grid, a move that is central to reducing carbon emissions from the energy sector. The lead author, Avi Zevin, was recently hired by the Department of Energy as deputy general counsel for energy policy.

With the market and state and local governments pushing for clean energy and the Trump administration pushing the other way, the story of the past four years is mixed. The administration was largely unsuccessful in most of its environmental, energy, and natural-resources litigation that ended up in the federal courts, suffering unfavorable rulings or backing off potential lawsuits, according to data compiled by the Institute for Policy Integrity. 

As the Biden administration seeks to undo the 'science transparency' rule, along with over 100 other environmental deregulatory actions undertaken by the Trump administration, it can now make use of the most powerful tool in the arsenal: the Congressional Review Act (CRA). Now that Democrats control the House and Senate, they can deploy the tool more effectively and proceed even without Republican votes.

Increasing fossil fuel development on public lands comes with serious downsides, according to New York University law professor, Jayni Foley Hein. In an article published in 2018, she argues that the prices private developers pay to extract fossil fuels from public lands do not reflect the external harms of fossil fuel production, such as greenhouse gas emissions.

Getting an accurate value for the social cost of carbon will be vital for much of the Biden administration's environmental agenda, said Jason Schwartz, legal director at the
Institute for Policy Integrity at New York University School of Law. "It is going to help in undoing all the harmful deregulation to climate regulations during the Trump administration," according to Schwartz.

The Obama White House was the first to require government agencies to use the social cost of carbon as part of any cost-benefit analysis of new regulations. This is not to say that the Obama administration’s method was perfect. Peter Howard, an economist at New York University’s Institute for Policy Integrity, has identified significant damages that will result from climate change that the Obama administration failed to account for, like fishery damage from ocean acidification and public health impacts from wildfires.