In the News

"If you are trying to run a legal or compliance department, you're thinking, 'I have a lot of more work now in telling my front office what they can or cannot do,'" Donald Goodson, deputy director of the Institute for Policy Integrity at New York University School of Law, told Regulatory Intelligence. "Across the country, if you have nationwide operations, you may face conflicting requirements."

“The D.C. Circuit’s opinion is clear and unequivocal,” said Jennifer Danis, federal energy policy director at New York University’s Institute for Policy Integrity. Danis penned a “friend of the court” brief on behalf of the project’s opponents.

Jason Schwartz, the legal director of the Institute for Policy Integrity, said the Trump administration’s regulatory rollbacks often ignored congressional statutes or inflated the costs of regulations on industry. Mr. Trump’s allies have presumably learned from those missteps, experts said.

The DOE’s recent pause on LNG export licenses is a prudent step to gather the type of record that courts would need to see after the Chevron decision, said Jennifer Danis, federal energy policy director for the Institute for Policy Integrity at the New York University School of Law. The ruling in Loper Bright offers terms that can grant agencies flexibility when phrases such as “reasonable” or “appropriate” are in the statute, Danis said. The Natural Gas Act standard for DOE to determine whether LNG exports are consistent with the “public interest” is “such a standard that evidences Congressional intent to leave this to agency discretion,” she said.

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.