In the News

Various non-governmental groups and analysts are seeking to influence climate and energy policy in the post-election period. A new paper, by the Institute for Policy Integrity (IPI) at New York University Law School, focuses on options to improve infrastructure development in an effort to stimulate the economy, boost social equity and reduce carbon emissions. The paper is not geared toward a specific administration, though it recommends changes to the National Environmental Policy Act (NEPA) unlikely to be embraced by a Trump administration. These include adding standardized methodologies and tools to evaluate climate impacts, and compressing permitting time for key categories of sustainable infrastructure, including by increasing staffing and resources focused on expedited permitting.

President Donald Trump famously promised to win so much that his supporters would be tired of it. But as a running tally of legal challenges to his administration’s actions shows, he has lost in court more than any other president. His overall win rate is currently 17 percent, while past administrations generally won around 70 percent of cases. And even a reelected Trump is at risk of continuing to lose dramatically in court.

Democrats prioritized climate in the "Moving Forward Act," the $1.5 trillion infrastructure package that passed the House in July. That legislation, H.R. 2, included a $100 billion investment in low-emission mass transit and a $75 billion investment in clean energy. "I think H.R. 2 was a good step forward. I would imagine that if Biden is elected, there will be an attempt to use that as a starting point but incorporate some new concerns from the Biden platforms," said Derek Sylvan, strategy director at the Institute for Policy Integrity at NYU School of Law and the author of a recent report on federal infrastructure policy. And if Democrats maintain their majority in the House and reclaim control of the Senate, the climate provisions would be an easier sell, Sylvan said.

President Donald Trump has won court cases challenging agency decisions by his administration 36% of the time when facing judges appointed by Republican presidents and panels of judges whose majority was made up of Republican appointees, according to a forthcoming analysis by NYU School of Law’s Institute for Policy Integrity. Previous studies show that four of his predecessors, when also up against politically-aligned judges, won cases 64% to 84% of the time.

Biden has already said that if he wins, he plans to roll back more than 100 Trump administration public health and environmental regulations. We asked Bethany Davis Noll, litigation director for the Institute for Policy Integrity at the New York University School of Law, to explain how Biden will execute these rollbacks if he takes the election.

One might assume that Trump’s changes to the immigration system can be easily undone — particularly since they were put in place unilaterally through executive actions (and refusals to do the work of government). And the administration has an overwhelming record of legal failure, according to a database of major Trump regulatory actions maintained by the Institute for Policy Integrity at New York University’s School of Law. In nearly every immigration case that has had some sort of resolution, a court either ruled against the agency or the relevant agency withdrew the action after being sued. Other regulatory actions would also likely be reversed by a new administration. But such reversals would happen slowly, if at all.

“If this ends up being a one-term administration, very little of the regulatory changes will stick,” said Richard Revesz, director of the Institute for Policy Integrity at New York University, which monitors lawsuits brought against all the administration’s departments. “The Trump administration has tried to do a lot, but it’s done it in an extraordinarily sloppy way.” According to the institute, courts with judges appointed by Democrats and Republicans have so far ruled against about 84 percent of the 90 energy and environmental regulations, guidance documents and other actions by the Trump administration.

Environmentalists acknowledge a Trump re-election victory would mean new threats to regulation but might not guarantee success of poorly crafted deregulatory efforts. “The Trump administration’s record in defending these rollbacks has been really atrocious thus far,” Environmental Defense Fund attorney Tomás Carbonell said during the environmental law conference, citing a statistic from New York University’s Institute for Policy Integrity that the administration has lost 83 percent of its legal fights to date with respect to deregulatory efforts across multiple federal agencies.

The New York University School of Law's nonpartisan Institute for Policy Integrity also faulted the EPA for declining to conduct a cost-benefit analysis for the changes, noting that the agency cited the March 2018 guidance in claiming its proposed rule would not result in a change to existing regulations. "An agency cannot evade its responsibility to provide a reasoned explanation for a policy change — including a discussion of the relevant factor of cost — simply by announcing the change in a memorandum prior to codifying it in a regulation," the institute said.

On October 2, the Institute for Policy Integrity and the Volatility and Risk Institute at NYU Stern School of Business co-hosted a conference on “Corporate Climate Risk: Assessment, Disclosure, and Action.” The conference explored the systemic risks that climate change poses to financial markets and the emerging calls from investors, governments, and other parties for companies to disclose these risks.