In the News

In lease sales in Wyoming and Utah, BLM applied the social cost of greenhouse gases while proposing to move ahead with substantial new oil and gas leasing. “I don't see how there's any injury from that,” said Max Sarinsky, a senior attorney at the Institute for Public Integrity at New York University School of Law. “And it also undercuts [red-state challengers'] whole theory that these numbers in and of themselves will necessarily cause substantial harm.”

Not fully accounting for carbon damages would skew any cost-benefit analysis of a proposed rule in favor of industry, said Max Sarinsky, a Senior Attorney at the Institute for Policy Integrity. He added that the social cost of carbon had been “instrumental” in allowing agencies to accurately judge how their rules affect the climate.

There are many instances in which agencies must rely on ambiguous allocations of statutory authority to resolve important policy questions. Conservatives would be able to use a major questions ruling to challenge agencies in such instances, particularly because a vague line between “major questions” and “minor questions” and between “ambiguous” and “unambiguous” might make it hard to understand the scope of the ruling. (New York University Law professor Richard Revesz’s brief focuses on the “illogical and unworkable new standards” that would come from applying the major questions doctrine to this case).

Government purchasing power has enormous potential to promote cleaner technologies. But how can agencies weigh the social benefits of procurement options against their up-front costs? By using the social cost of greenhouse gases, writes Andy Stawasz.

“I’m less optimistic about the court’s rulings in the next few years, given that the 6-3 majority seems intractable,” said Meredith Hankins, an attorney at the Institute for Policy Integrity. “Completely rejecting the idea … that these expert agencies should have the power to decide complicated questions — from an environmental/climate perspective — that’s incredibly depressing,” Hankins said. “The EPA is this expert agency that Congress has chosen to provide a lot of leeway to in issuing regulations, and if a judicial majority is going to refuse to recognize that expertise, there’s not much to be done at the margins.”

New York University School of Law professor Richard Revesz, who specializes in regulatory law and policy, spoke to Bloomberg Law about Breyer’s role in the Supreme Court’s handling of the major questions doctrine, how the doctrine has evolved, and a major environmental case set for oral argument Feb. 28 that gives the conservative justices a chance to further expand it. The following conversation has been edited for clarity.

Richard Revesz, who directs the New York University law school’s Institute for Policy Integrity calls President Joe Biden’s first year a “good beginning” with the “real test” coming this year. If significant progress is not made in 2022, it “becomes harder for rules to stick” in the second half of a term if Biden is not re-elected.

In regulatory policy, as in life, calculating a potential action’s costs is an important step in determining whether to take that action. Identifying these costs without giving them a place in the decisionmaking, however, would be irrational, and undermines the purpose of calculating the costs in the first place. And yet this is precisely the approach the Department of the Interior (Interior) has taken in analyzing recent proposals to lease public lands and waters for fossil fuel development.

The argument made by BOEM at the time was that a decrease in federal oil and gas activity would be replaced by imports from foreign producers, and generally those imports could come from areas with a higher carbon imprint from production. Max Sarinsky, an attorney at the Institute for Policy Integrity at the New York University School of Law, told lawmakers that BOEM’s old finding flew in the face of economic principles.

On Thursday, the Subcommittee on Energy and Mineral Resources hosted a remote oversight hearing titled, “What More Gulf of Mexico Oil and Gas Leasing Means for Achieving U.S. Climate Targets.” Witnesses included Policy Integrity's Max Sarinsky. The recording is available here.