In the News

The decision is a telling indication of rulings to come, as the first one targeting a final environmental repeal by the Trump administration, said Jayni Foley Hein, natural resources director at New York University’s Institute for Policy Integrity. “It’s emblematic of the challenges this administration has faced in trying to carry out the energy dominance agenda. When you are weakening or rolling back environmental standards, you’re going to be challenged in the court, and there are certain substantive and procedural hurdles you have to overcome in order to carry that out.”

It was the latest setback for an administration that has repeatedly lost efforts to defend its deregulatory actions in court. It has lost roughly 95% of its deregulatory cases, according to data compiled by the Institute for Policy Integrity at New York University School of Law. That is three times the rate of most executive-branch agencies in prior administrations for similar actions in the courts.

Despite its low success rate, the administration is actually winning — at least some of the time. That’s because the administration has learned to use delaying tactics to undermine and even repeal federal regulations it doesn’t like, even when judges rule against it in court.

Revesz said many of the court losses can be tied to a conundrum for the administration: If they complete scientific and thorough analysis to justify what they want to do, that work will show why their goal is harmful to the public. But if they complete haphazard analysis, judges will see through it. “So they’re caught between a rock and a hard place,” Revesz told CQ. “I think in some cases there is not good analysis that they could do, so they resort to bad analysis.”

Every additional ton of the greenhouse gas emissions from burning fossil fuels to generate electricity contributes to climate change. This carbon pollution has many negative consequences, both to the physical world and also to global social and economic systems. But utilities don’t always tally the costs of these consequences. Because dealing with climate change is astronomically expensive, we believe that this should change.

“What this decision says is, in evaluating the environmental consequences of the lease, an agency has to look not just at the consequences of the impacts immediately surrounding the lease but also the consequences down the road of burning the fuel once it’s extracted,” said Richard L. Revesz, an expert on environmental law at New York University. “That’s enormously important.”

The agency has invented a new, unnatural way of evaluating regulatory cost that finds no support in the economics literature or in the regulatory practices of prior administrations of either political party.

Andrew Wheeler’s EPA may not be as dramatic as Scott Pruitt’s, but it still suffers the pathologies that make its work poor quality—and unlikely to hold up in court.

As climate threats mount and the window to act is beginning to close, states need to adopt desirable energy storage policies as quickly as possible.

An analysis by the Institute for Policy Integrity at New York University School of Law shows that more than 90 percent of court challenges to major Trump deregulatory actions have been successful so far. In a typical administration, the government wins on such challenges around 70 percent of the time, said Richard Revesz, a law professor at N.Y.U. who specializes in environmental law. “This is truly aberrational,” he said.