In the News

Pay no attention to the premature deaths behind the curtain. That is the upshot of the analysis supporting the Environmental Protection Agency’s so-called Affordable Clean Energy rule, which public health groups are challenging in a lawsuit filed earlier this month.

Protected bike lanes, which make streets safer for both pedestrians and bikers, can improve the situation tremendously. But city officials and Community Boards have refused to follow through with a comprehensive approach to installing and enforcing bike lanes, creating dangerous conditions in neighborhoods all around the city.

Though standards limiting vehicle emissions have played a critical role in controlling U.S. air pollution, the Environmental Protection Agency and National Highway Traffic Safety Administration have imminent plans to roll back emissions standards for model years 2021 and beyond. As part of the proposal, the agencies have put California in their crosshairs. But leaving California alone could help keep the air cleaner and avoid the political and legal uncertainty caused by picking that fight with California.

The Trump administration appears to be entering an alarming new stage of its attack on environmental protection. EPA has recently decided it will change the way it collects and processes data, to provide better justification to dismantle the analytical foundation of its rules.The consequences for the environment and public health could be disastrous. But even as this approach might be more deliberate, these actions are unlikely to survive court challenges as well.

Administrative agencies, courts, and litigants are just coming off two years of intense debates over the legality of agency deregulation through delay. One fascinating development has been how significant cost-benefit analysis has been in these debates. Cost-benefit analysis has formed the basis for several important court losses suffered by the administration. Now agencies have proposed to repeal many big-ticket rules, including the Clean Power Plan, the Clean Water Rule, and vehicle emissions standards. A key question is what role cost-benefit analysis will play in the upcoming legal battles over repeals.

In court the administration has lost most of the environmental cases it has faced. It has been defeated in more than 90 per cent of the 41 legal actions related to regulatory rollbacks, in which a final outcome was reached, according to a database at the Institute for Policy Integrity at the NYU School of Law.

“Particulate matter is extremely harmful and it leads to a large number of premature deaths,” said Richard L. Revesz, an expert in environmental law at New York University. He called the expected change a “monumental departure” from the approach both Republican and Democratic E.P.A. leaders have used over the past several decades and predicted that it would lay the groundwork for weakening more environmental regulations.

Together, these court decisions amount to a stunning defeat of the “energy dominance” agenda and reveal that the Trump administration cannot operate outside the bounds of the law.

Bethany Davis Noll, litigation director for the Institute for Policy Integrity, said agencies’ repeated violations of procedural rules only partially explain the losses. As the administration moved past its initial strategy of delaying the implementation of Obama administration policies and into the next phase of attempting to overhaul them, it has run into a different obstacle: It is legally required to provide reasons for changing course. “They have this big substantive problem where the rules are justified and they aren’t giving us a good reason for abandoning them,” Noll said. “An agency that wants to turn its back on that has a really tough job.”

The decision is a telling indication of rulings to come, as the first one targeting a final environmental repeal by the Trump administration, said Jayni Foley Hein, natural resources director at New York University’s Institute for Policy Integrity. “It’s emblematic of the challenges this administration has faced in trying to carry out the energy dominance agenda. When you are weakening or rolling back environmental standards, you’re going to be challenged in the court, and there are certain substantive and procedural hurdles you have to overcome in order to carry that out.”