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“A lot of the agencies are sort of in a ‘damned if we do, damned if we don't' situation, where they’re often under legal requirements to take certain actions ... but this injunction is prohibiting them from sufficiently analyzing the climate impacts of those actions,” said Max Sarinsky, senior attorney at the Institute for Policy Integrity at the New York University School of Law. 

Richard Revesz, who directs the Institute for Policy Integrity at the New York University School of Law, said the Louisiana judge’s decision was “one of the most aggressive and ill-founded administrative law opinions” that he has read in recent years. Revesz called it “unprecedented” for a judge to intervene so early in the rulemaking process to tell the government it cannot study a potential risk. “I don’t know how a court could tell a president that the executive branch cannot estimate the harm of a pollutant,” he said. “It’s like saying, ‘I’m sorry, the executive branch cannot study whether something is a carcinogen.’”

The greenhouse gas emissions “trigger” provides new clarity for how FERC processes and regulates gas projects, said Sarah Ladin, an attorney at the Institute for Policy Integrity at the New York University School of Law. She noted that FERC has been completing supplemental environmental impact statements for some gas projects over the last year, despite having already issued environmental assessments for the same proposals. “We won’t have to see the delays we saw, where there’s an EA first and [then] a supplemental EIS,” Ladin said.

“I think the decision will get very, very close scrutiny on appeal,” argues Max Sarinsky, a senior attorney at the Institute for Policy Integrity (IPI) at New York University School of Law. “This decision suffers from obvious constitutional deficiencies.”

"This injunction is extraordinarily broad," Max Sarinsky, an attorney at the Institute for Policy Integrity at NYU Law School, told Axios. "I think it will receive very, very close scrutiny on appeal."

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.”