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Unlike former President Barack Obama’s Clean Power Plan, Biden’s regulation drills down on carbon emissions at the power plant level, which legal experts say may save it from a similar fate before the Supreme Court. “EPA’s new rule sticks to its plain vanilla, long-standing approach to reduce emissions through systems that help a source operate more cleanly,” said Dena Adler with the New York University School of Law.

Industry lawyers last fall raised concerns about EPA’s reliance on those D.C. Circuit cases -- including arguing that they do not apply to existing sources. However, New York University’s Institute for Policy Integrity in a recent issue brief argues federal courts have repeatedly affirmed that technology does not have to be in widespread use to be “adequately demonstrated,” and that standards may be forward looking.

"At bottom, the Clean Power Plan essentially adopted a cap-and-trade scheme, or set of state cap-and-trade schemes, for carbon," Roberts wrote. "Congress, however, has consistently rejected proposals to amend the Clean Air Act to create such a program." The Biden rule, however, takes an entirely different approach, said Dena Adler, a senior attorney at the Institute for Policy Integrity at the New York University School of Law. “EPA’s new rule sticks to its plain vanilla, long-standing approach to reduce emissions through systems that help a source operate more cleanly,” she said.

EPA’s passenger vehicle rule’s “thorough analysis also offers a critical roadmap for Department of Justice litigators who will soon brief this issue. Other agencies should study EPA’s approach and follow suit,” argued Max Sarinsky, the regulatory policy director at New York University’s Institute for Policy Integrity, in a March 25 blog post.

Also, on April 18, New York University’s Institute for Policy Integrity hosts a webinar about the role of economics in regulatory advocacy. The discussion will cover ways to engage in the regulatory process including the White House’s National Science and Technology Council’s Subcommittee on Frontiers of Benefit-Cost Analysis.

The defense of the Federal Acquisition Regulatory (FAR) Council’s pending rule comes as another analyst recently argued that agencies should use EPA’s recently finalized vehicle emissions rule as a model for how to counter such major questions attacks, including by citing statutory mandates for the rule and drawing analogies with past agency practice. “Other agencies should study EPA’s approach and follow suit,” argued Max Sarinsky, the regulatory policy director at New York University’s Institute for Policy Integrity (IPI), last month.

“EPA’s thorough analysis also offers a critical roadmap for Department of Justice litigators who will soon brief this issue. Other agencies should study EPA’s approach and follow suit,” argues Max Sarinsky, the regulatory policy director at New York University’s Institute for Policy Integrity, in a March 25 blog post. He adds: “EPA details how its new rule is consistent with decades of agency practice and legislative purpose,” his blog post says, adding that the agency explained how the Clean Air Act text, legislative history and past rules are all consistent with considering and promoting electric vehicles.

In the nearly two years since the Supreme Court upended administrative law with its formal introduction of the MQD in West Virginia, federal agencies, scholars, and advocates have been coming up with ways to shore up new regulations against potentially-heightened scrutiny. Often these recommendations come in the form of particular analyses that an agency could include in a regulatory preamble that rebuts claims that a regulation is novel, transformative, economically significant, or any of the Court’s other supposed markers of “majorness.” For example, alongside the Institute for Policy Integrity, our organization urged the Environmental Protection Agency (EPA) to include a detailed accounting of “regulatory antecedents” in its final clean car rule to help rebut claims that it was a “novel” or “unheralded” agency action; as Max Sarinsky recently detailed, the EPA thoroughly did so in its final regulation.

The American Public Health Association, Smart Surfaces Coalition, Institute for Policy Integrity, and others can support a broader social cost benefit to determine what performance levels to require in procurement standards.

“EPA’s thorough analysis also offers a critical roadmap for Department of Justice litigators who will soon brief this issue. Other agencies should study EPA’s approach and follow suit,” argues Max Sarinsky, the regulatory policy director at New York University’s Institute for Policy Integrity (IPI), in a March 25 blog post on the Yale Journal on Regulation.