In the News

A Supreme Court ruling that overturns the legal doctrine Chevron v. Natural Resources Defense Council could have wider implications for existing federal regulations, said Don Goodson, a senior attorney with New York University School of Law's Institute for Policy Integrity. "It would pose another practical difficulty in how much relitigation that would open up," Goodson said in an interview. At the same time, Goodson noted that Congress clearly intended to give agencies like the Federal Energy Regulatory Commission broad jurisdiction over areas such as interstate sales and transmission of electricity.

EPA has previously set standards that require industries to invest in new types of pollution controls, said Dena Adler, an attorney with New York University’s Institute for Policy Integrity. “The history of the Clean Air Act is filled with regulations where technologies were projected to be very expensive,” she said. “And after the regulations came down, industry figured out how to install these control technologies better and cheaper.”

The upcoming rule from the Environmental Protection Agency is expected to depend on rarely used technology for capturing power plants’ greenhouse gas pollution. It will have to survive the conservative Supreme Court that hobbled the EPA’s regulatory powers just 10 months ago. An EPA standard based on carbon capture would be “entirely different” from the Obama regulation’s demand that utilities switch to cleaner fuel sources. Capturing pollution at the source “is really the bread and butter of the Clean Air Act and the type of regulation that EPA has been issuing for decades,” said Dena Adler, an attorney with New York University's Institute for Policy Integrity. 

An ambitious Biden administration’s plan to clean up emissions from a heavily polluting transportation sector will face industry litigation, but environmental lawyers see the rule holding up during eventual challenges. But the rule is not as transformative as some claim, which provides it with insulation from future claims that the rule raises “major questions,” according to Meredith Hankins, an attorney for the Institute for Policy Integrity, who said the action is rooted in tried-and-true Clean Air Act authority. The Clean Air Act has always been “technology-forcing,” and electric vehicles are squarely in the same vein as catalytic converter emission controls were when they were first mandated for vehicles, Hankins said.

The U.S. Environmental Protection Agency's ratcheting up of greenhouse gas emissions standards for vehicles reflects the Biden administration's push to electrify the automotive sector, but the agency's aggressive approach will raise legal and practical questions. Not only are the proposed rules more stringent than the current standards that run through the 2026 model year, but the current ones are also largely undoing rollbacks by the Trump administration, said Meredith Hankins, a senior attorney at the Institute for Policy Integrity at New York University School of Law who focuses on air quality and transportation.

The update to how agencies assess costs and benefits of proposed regulations will help ensure that economic analysis applies state-of-the-art approaches to a range of issues, from valuing future impacts to considering distribution and equity, according to Max Sarinsky, senior attorney at the Institute for Policy Integrity at the New York University School of Law. 

“It's tricky to know how it's going to play out until the Supreme Court decides another major questions case,” said Meredith Hankins, a senior attorney at New York University's Institute for Policy Integrity, which supports the Biden EPA's rules.
But Hankins said both the near-term rule and EPA’s forthcoming post-2027 regulation are extending strategies used in prior rules.
“EPA has been issuing these greenhouse gas regulations for almost 15 years at this point,” they said. “And every single rule, they've indicated that they expect increasing numbers of electric vehicles.”

Last month, the U.S. Forest Service decided to move forward with a logging project on the border of Yellowstone National Park without applying the new White House guidance, which would have involved a detailed projection of the resulting greenhouse gas emissions. “There’s no perfect way to contextualize greenhouse gas emissions,” said Max Sarinsky, senior attorney at the Institute for Policy Integrity at the New York University School of Law. “I think the ways that CEQ suggests—particularly, the social costs of greenhouse gases and considering carbon budgets and climate commitments—is really a thoughtful way to show what the emissions mean.” 

The Institute for Policy Integrity at the New York University School of Law, which had backed the Biden administration in the 5th Circuit litigation, celebrated the court’s ruling. “Louisiana’s lawsuit against the government’s climate-damage valuations was doomed from the start due to a lack of standing,” Max Sarinsky, senior attorney for the institute, wrote in an email. “Although the challengers briefly prevailed last year, the district court decision granting their requested relief was widely derided across the political spectrum for misapplying legal doctrines, mischaracterizing facts (including a Constitutional provision), and prioritizing unsupported allegations over Nobel Prize-winning economics.”

Two key Hill Democrats and a legal think tank are backing the National Highway Traffic Safety Administration (NHTSA) against fuels sector and GOP states’ legal claims that the agency improperly factored zero emission vehicles (ZEV) into its baseline for fuel economy standards, building on the agency’s defense in the suit. An amicus brief from New York University’s Institute for Policy Integrity (IPI) builds upon NHTSA’s arguments that EPCA does not preempt accounting for ZEV deploying in the regulatory baseline.