In the News

You probably thought that last week’s only notable debate was the one between Hillary Clinton and Donald Trump at Hofstra University, but, on Tuesday, supporters and opponents of EPA’s Clean Power Plan had a high-stakes showdown of their own in Washington, D.C.: a seven-hour oral argument before the D.C. Circuit Court of Appeals. The proceedings may not have spawned an SNL sketch, but in the wonky world of environmental law, they were a very big deal.

The Clean Power Plan ruling was extremely unusual, especially as the Circuit Court had unanimously declined to issue a stay; as Richard Revesz, a professor at the New York University School of Law, recently told my colleague Jeffrey Toobin, “It was totally unprecedented for the Supreme Court to step in.” The 5–4 vote on the stay seemed, to put it mildly, to bode ill for the plan.

Richard Revesz shares his take on yesterday’s Clean Power Plan oral arguments, and why the strength of EPA’s arguments came through clearly.

Richard Revesz, director of the Institute for Policy Integrity at New York University’s law school, said the suing states were exaggerating the regulatory reach of the EPA. “The Clean Power Plan, while certainly a very important rule, is not the boundary-breaking behemoth that the petitioners make it out to be,” Revesz said.

In the summer of 2015, the Environmental Protection Agency issued a long-awaited regulation aimed at combating climate change, requiring electric power plants to sharply reduce their emissions. “It was probably the most important environmental regulation in history, since power plants account for about half of the carbon-dioxide emissions in the country,” Richard Revesz, a professor at New York University School of Law, said.

In a critical federal court hearing this month, challengers of the Clean Power Plan, the Obama administration’s signature climate change policy, will characterize the Plan as an “enormous and transformative expansion” of the Environmental Protection Agency’s (EPA) regulatory power.

“In Hughes, Maryland was focused on the money that would be needed to prop up companies, to help them survive in the face of changing markets,” said Denise Grab, senior attorney at the Institute for Policy Integrity at New York University’s School of Law. “New York’s final CES decision does what it can to stay away from that approach; instead, it focuses on properly valuing the low-carbon attributes of nuclear plants separate from the wholesale markets.”

New York State’s new Clean Energy Standard (CES) has drawn plenty of attention for trying to prop up otherwise-faltering nuclear plants. But what it’s actually doing is far more significant. The CES, recently approved by the New York Public Service Commission, aims to help meet the state’s goals of using renewable energy sources for half its electricity by 2030 and reducing greenhouse gas emissions by 80 percent by 2050. To help get there, the CES lays out one of the country’s first clean energy plans that relies on sound economic valuation of generators’ clean energy attributes. This isn’t a nuclear plant bailout; it’s an embrace of economic principles.

Jayni Foley Hein, the policy director at the Institute for Policy Integrity at NYU School of Law, told me that not all companies oppose SCC, and that some, like Microsoft, actually have an internal social cost of carbon.

The Institute for Policy Integrity said the ruling is significant for including climate change in cost-benefit analyses. “This ruling provides significant support for the social cost of carbon as a regulatory policy tool,” Denise Grab, a senior attorney with the institute, said in a statement.