In the News

A recently introduced bill aiming to prevent federal agencies from considering the Social Cost of Greenhouse Gases highlights the role some bills play in informing — and sometimes misinforming — the public. Though almost certainly destined to fail, the bill presents faulty and misleading criticisms that could have chilling effects on important policy evaluation efforts.

One potential consequence, that each panelist feared could happen, would be more rulings based on the Major Questions doctrine. This would be a big change for the Court. On this point, Dena Adler from NYU stated, “Until recently, this interpretive framework was little-used, and it remains poorly defined.”

A Yale Journal of Regulation article by Justin Gundlach and Michael Livermore on the complementary uses of the social cost of greenhouse gases and marginal abatement costs metrics was featured in the editors' selection, along with an op-ed by Peter Howard and Max Sarinsky explaining why limiting domestic fossil fuel extraction reduces global climate pollution despite substitution effects.

The Supreme Court’s enshrinement in West Virginia v. EPA of the major questions doctrine as a key technique of statutory interpretation is a threat to regulation in general, contends Richard Revesz.

Most Clean Air Act experts say that even if ACE had taken effect, the Biden EPA would have little difficulty in rolling it back and replacing it with a new rule. “The explanation might have looked a little different if the Trump administration had justified the ACE rule in a different way,” said Richard Revesz. “But I don’t think it would have taken any extra time to do it.”

Richard Revesz, professor and director of the Institute for Policy Integrity at New York University School of Law, said the Supreme Court’s decision would limit but not remove the EPA’s power to regulate power plant emissions. “The administration still has a lot of tools in its toolbox," he said.

The real wrecking ball in West Virginia v. EPA is how the court unnecessarily tied our societal hands from most effectively tackling a major problem. This case could be a canary in the coal mine for a wider attack on regulatory safeguards.

Observers had mixed views on how the ruling would affect proposed changes to company disclosure statements about climate-related risks at the SEC, or FERC's proposal for how to assess the emissions of individual interstate natural gas projects before they are approved for construction. The disclosure rule is designed to be a proxy for the financial risk facing companies, including from potential environmental regulation, and does not force companies to reduce their emissions, according to recent public comments filed by the Institute for Policy Integrity.

“While this is a setback for addressing the climate crisis, EPA still retains the authority, and an obligation, to limit greenhouse gas emissions, including from the power sector,” Adler said in an email. Besides increasing the efficiency of power plants through heat rate improvements, the EPA can look to other ways to lower carbon emissions such as co-firing with low-carbon fuels and carbon capture and sequestration, according to Adler.

 Adler warned that the case could be the “canary in the regulatory coal mine” because the court relied on the little-used “major questions doctrine” to reach its conclusion that EPA had veered beyond its congressionally approved instructions. Adler warned that applying the major questions legal theory more broadly — as conservative judges on the court have increasingly done to block regulatory initiatives — “will create more uncertainty for agencies and the entities that they regulate.”