In the News

Though the line between forcing technology and relying on what’s adequately demonstrated can be thin, Dena Adler of New York University’s Institute of Policy Integrity says Congress always meant for its seminal air law to solely protect public health, “not merely memorialize the status quo... And the track record for earlier power plant rules shows that industry has repeatedly been able to meet regulations much faster and much more cheaply than anticipated,” Adler said.

Under Trump’s first EPA administrator, Scott Pruitt, the Agency saw several legal defeats, which meant a delay in repealing many Obama administration rules. This resulted in several Trump replacement rules not being finalized until the end of his first term in office. Approximately 80 percent of Trump administration actions were legally defeated, according to The Institute for Policy Integrity at New York University School of Law.

“There’s a reason that most administrators have a substantial background in high executive branch or state-level executive branch positions, or both,” said Jason Schwartz, a former senior adviser in the White House regulatory office under President Joe Biden. “It’s because EPA is a complex agency to run...” “If you’re rolling back a regulation, you need to explain why,” said Schwartz, who now serves as legal director of the Institute for Policy Integrity at the New York University School of Law. “You need to explain why you’re changing position from what the agency just said on its review of all the scientific and economic evidence a couple years before.”

One probable path forward at least for some cases: the Trump Administration will freeze certain rules and then ask courts to halt litigation while they commence a lengthy notice-and-comment rulemaking process, Institute for Policy Integrity senior attorney Dena Adler said in an email. But the timing of Biden’s briefs could factor into whether certain cases continue on schedule: courts don’t guarantee abeyance requests. The power plants rule, according to Adler, is one that could raise questions for courts considering a potential freeze request. Not only is it fully briefed, but arguments are set well before inauguration on Dec. 6.

Trump’s first administration lost in court. A lot. “They did not do well in court largely because of what they did poorly during the regulatory process,” Don Goodson, the deputy director of the Institute for Policy Integrity at New York University School of Law, told Landmark.”They had a lot of procedural problems when issuing their rules, and they also had poor analyses supporting their rules.” He continued: “Basically, they were just not doing a great job issuing rules, which contributed to a historically low win rate for the administration in court.”

Governor Hochul is co-chair of the U.S. Climate Alliance – a bipartisan coalition of governors committed to fighting climate change. Among the commitments of the Alliance is the promise to build resilience to withstand the impacts of climate change. The Climate Superfund bill would further that goal. Unless the governor approves the legislation, the entire costs of climate change – which already total billions of dollars annually – will be borne solely by New York taxpayers. The bill shifts some of those costs to the companies most responsible for our worsening climate without those costs being passed on to the public. An independent economic paper published by the respected Institute for Policy Integrity at the NYU School of Law supports that view.

“EPA has made substantial progress in conducting EJ analysis,” New York University’s Institute for Policy Integrity Executive Director Burçin Ünel, told an Oct. 28 webinar hosted by Resources for the Future (RFF). There are now “a substantial portion of EPA rules [that] actually have quantitative [EJ] analysis,” she added. At the same time, though, Ünel and other researchers say the quality of such analyses may be falling short and urge EPA to expand those analyses in future rulemakings. For example, the results of the upcoming RFF study found that only 66 percent of the EJ analyses for economically significant rules over the last three administrations included a quantitative EJ analysis -- a key metric of their quality, the researchers say. In addition, consideration of the costs of the rules to EJ communities is still “limited,” Ünel says.

Derek Sylvan, strategy director at the Institute for Policy Integrity at New York University, said the tax credits have the potential to drive tremendous emissions cuts with hundreds of billions of dollars in benefits. But many, like the hydrogen credit, have the potential to be skewed in favor of fossil fuels or other polluting technologies. “That could be really huge,” Sylvan said. “You could imagine that for any particular tax credit, if that changes and suddenly a lot of funds are going to activities that have pretty limited or even negative climate benefits, that could certainly undermine the climate impacts of the IRA.”

Oil and gas companies and some renewable developers want more leeway in using fossil fuels to power this process, otherwise, they say, hydrogen projects won’t be built at all. But making the regulations too lax would mean some carbon-polluting projects would get the “clean hydrogen” tax credits, says Matt Lifson, an attorney at the Institute for Policy Integrity at NYU School of Law. “From an emissions, climate change perspective, it would not be a good thing,” he said. 

The Institute for Policy Integrity said the "novel approaches" being put forward by the petitioners and the federal government would promote "arbitrary analyses" inconsistent with the long-standing "reasonable foreseability" test required by NEPA, allowing agencies to disregard significant and foreseeable costs even as they tally indirect and uncertain benefits.