In the News

New Jersey has recently taken some important steps to reduce greenhouse-gas emissions and other pollution from the transportation sector, but these efforts face a new potential roadblock as the coronavirus has sent the state budget into free fall. Exploding state expenditures, diminished tax revenue, and jarring transitions in the labor force all foretell that the state will have a hard time meeting its goals for decarbonization. To close this fiscal gap and make transportation investments that will benefit nearly every resident, New Jersey’s leadership should look to a program being developed by about a dozen states in the Mid-Atlantic and Northeast: the Transportation and Climate Initiative.

The EPA’s top lawyer is trumpeting the agency’s success rate in court, saying it’s won two-thirds of “significant” environmental cases during the Trump administration. But the assertion, made by the agency’s general counsel, Matthew Z. Leopold, clashes with—and also comes in response to—other tallies showing judges have largely sided with the EPA’s state and environmental adversaries. A New York University Institute for Policy Integrity analysis, for example, lists just nine EPA wins out of 47 regulatory cases tracked. Policy Integrity's litigation director Bethany Davis Noll, who oversees the institute’s tracker, said the EPA’s list had nearly two dozen cases that she had left off because they were either duplicative, still pending, not focused on Trump-era actions, or resolved on procedural grounds rather than on the merits.

“Existing law has evolved over a century of fossil fuel use and the development of existing infrastructure,” said Justin Gundlach, an attorney at the Institute for Policy Integrity, a nonpartisan think tank. “There is a lot of work to be done identifying where New York's Climate Leadership and Community Protection Act and existing law need to either be amended or reinterpreted.”

In some cases, Trump administration efforts are hitting delays and possibly brick walls. The Administrative Procedure Act requires that a new rule must have a “reasoned explanation” for it to be sound – or withstand a lawsuit, says Bethany Davis Noll of the Institute for Policy Integrity at New York University School of Law. If some Trump moves leave a lasting mark, in other cases the president’s actions could face reversals – notably in cases where his policies lack strong economic or scientific footing. “I think most presidents want some kind of legacy,” Davis Noll says, and in her view “that’s what he hasn’t managed to accomplish.”

The D.C. Circuit is expected to hear oral arguments in challenges to major replacement rules sometime in the fall. Decisions in all three high-profile legal battles could come after Biden potentially takes the oath of office. "These are complicated cases and it typically takes the D.C. Circuit at least six months to decide them, so they're probably pending when the new administration comes into office," Richard Revesz, director of New York University Law School's Institute for Policy Integrity, said. A new Biden administration would likely ask the D.C. Circuit to put the suits on hold on the grounds that the new president wants to review and modify the rules, Revesz said, noting that Trump did the same thing with the Clean Power Plan shortly after being sworn into office in 2017.

To date, challenges to Trump’s deregulatory actions have been very successful. The Institute for Policy Integrity at the New York University School of Law found that the Trump administration has lost 87% of challenges to its regulations, guidance documents, and agency memoranda.

EDF asked the court to strike down the Trump EPA’s July 2019 rule repealing the Clean Power Plan, and to order the agency to  fulfill its statutory obligation to establish meaningful protections against climate- and health-harming pollution from existing power plants. A diverse array of experts and organizations have also filed amicus briefs forcefully opposing the rollback of the Clean Power Plan. That group includes five of the nation’s most prominent health and medical associations, the Institute for Policy Integrity at NYU Law School, seven leading experts in administrative law, one of the authors of the Clean Air Act, organizations dedicated to the conservation of national parks, a group of leading climate scientists and economists, and the Union of Concerned Scientists.

What are we to make of this seeming sea change in corporate social responsibility? Critics are correct in pointing out that these measures fall far short of what is needed to avoid catastrophic levels of warming. But to observers of corporate governance, this level of climate activism is unprecedented, almost shocking—and without an analytical vocabulary to make sense of it. To understand this recent rise in institutional investor activism, one has to look at the shifting composition of the major players in capital markets over the past decade.

Trump’s regulatory legacy will be greatly shaped in coming months by court rulings in lawsuits challenging some of his most potentially consequential rollbacks. “He needs to win reelection in order to defend those rules in court, and even then I think it’s going to be a longshot to win some of those,” said Bethany Davis Noll, litigation director of New York University’s Institute for Policy Integrity.

By the administration's own admission, the new aviation emissions standards would do nothing to further reduce the country's rising greenhouse gas levels because the airline industry had already imposed those standards on itself four years ago. "Everything the Trump administration has done has either made no difference at all or involved significant cutbacks," Richard Revesz, a New York University law professor and founder of the Institute for Policy Integrity, said of the administration's environmental policy decisions. "So, the airline standard that was announced is essentially business as usual."