In the News

Agencies have limited capacity to conduct rigorous cost-benefit analysis — they often cite resource limitations as a reason that they cannot monetize certain benefits. But they also have at least one strategy for mitigating this challenge: They can look to their past valuation practices for models and build on their existing methodologies. Where benefits like increased dignity and public health are at stake, every bit of valuation counts.

Meanwhile, the Institute for Policy Integrity (IPI) at New York University School of Law in June 14 comments urges EPA to further examine the potential costs and benefits in the rule with specific regard to its environmental justice benefits, its interaction with climate risks, and its effect on future pollution patterns. “EPA should set secondary NAAQS that prevent anticipated adverse and disproportionate public welfare impacts on environmental justice communities, including potential impacts to drinking water quality, subsistence fishing, and recreational opportunities,” IPI says, calling EPA’s EJ analysis “abbreviated.”

What can the governor do? She can sign the “Climate Change Superfund Act,” which puts the world’s largest oil companies on the hook for at least some of those costs. The bill requires those companies most responsible for the emissions of greenhouse gases to pay the state $3 billion annually for the next 25 years. The major hangup had been concerns that the annual assessment will be passed on to the public. That concern runs counter to basic marketplace economics, a view echoed in an independent economic paper published by the respected Institute for Policy Integrity at the NYU School of Law. 

FERC doesn't even necessarily have to make a "significance" finding on GHG impacts in order to factor them into an ultimate decision under the NGA that a project is needed and in the public interest, said Jennifer Danis, federal energy policy director at the Institute for Policy Integrity at New York University School of Law. "For that, labeling something significant or not seems to me to be less precise than weighing monetized costs and benefits," said Danis, who has frequently represented challengers to FERC-approved pipelines.

The court's ruling does not appear likely to doom future climate cases against FERC. The D.C. Circuit's dismissal of Food & Water Watch's arguments for a robust climate analysis of the East 300 Upgrade Project was grounded in the particular facts of the case, said Jennifer Danis, federal energy policy director for New York University's Institute for Policy Integrity. "The D.C. Circuit's opinion does not have real bearing on ongoing or future challenges regarding how climate laws or costs should factor into FERC's need or public interest determinations under the Gas Act," she said in an email.

The law does not restrict future production by fossil fuel companies. They can still drill to their corporate hearts’ content and pay nothing more to Vermont. An economic analysis of a similar proposal in New York State by the Institute for Policy Integrity at New York University’s law school found that it “was unlikely to alter the price” of gasoline at the pump or the price of crude oil. In short, Vermont’s law is an elegant legal approach to make oil company shareholders foot their fair share of these costs.

The Speaker’s statement represents a fundamental misunderstanding of how the Climate Change Superfund Act would work. A failure to approve the legislation will leave New York taxpayers holding the bag for mounting climate costs, while Big Oil continues to make huge profits. The Climate Change Superfund Act should not have an impact on utility rates, no impact on gas prices, no impact on home heating costs. The bill’s impact will be to solely reduce climate costs currently paid by taxpayers. An independent economic paper published by the respected Institute for Policy Integrity at the NYU School of Law supports that view. 

The Institute for Policy Integrity on June 6 hosts an event on how climate-linked weather events are causing energy disruptions, and ongoing research on resilience. The Electric Power Research Institute (EPRI) hosts a June 6 event about a two-year status update for its READi resilience and adaptation program.

The major questions doctrine is a non-issue for Order 1920. This is simply not one of the “extraordinary cases” that the West Virginia Court cautioned might warrant skepticism under the doctrine. Without Order 1920 remedying existing planning and cost allocation practices, FERC would be playing whack-a-mole in adjudicating individual tariffs when it must eradicate systemic failures. And we would all pay the price: unjust rates and a less reliable grid.

To be clear, we don’t dispute that eliminating or curtailing Chevron deference would have serious consequences... But equally clear—yet sometimes overlooked—is that agencies often have other avenues to adopt ambitious rules without Chevron deference. This piece highlights several of the legal principles that will endure regardless of Chevron’s fate (or the fate of other legal-deference regimes). In so doing, we highlight where regulators, advocates, and commentators can enforce the boundaries of any decision limiting or eliminating Chevron deference and so thwart efforts to leverage the decision to cripple agency actions that do not rest on Chevron deference. Applying these principles faithfully upholds legislative grants of regulatory authority.