In the News

For more than four decades, the Environmental Protection Agency (EPA) has worked to eliminate harmful air pollution pursuant to the Clean Air Act of 1970. And for just as long, EPA’s efforts have been hampered by a tragic flaw in that statute: its exemption of existing industrial facilities—most notably, coal-fired power plants—from federal limits on some of the most common, and harmful, types of pollution. As we explore in our new book, Struggling for Air: Power Plants and the “War on Coal”, this “grandfathering” of old plants has had grave and lasting consequences for public health.

As Richard Revesz, the former NYU law school dean, and Jack Lienke have shown, much of the coal industry infrastructure has long outlived its intended natural life cycle. As these plants retire, the reality is that they are already being replaced with natural gas. That was the context for Clinton’s unfortunate remarks. In point of fact, she has put forward a plan to help transitioning workers.

The federal leasing program for onshore oil and gas is plagued by environmental and economic questions. The time is ripe for a review of this program.

An analysis of prior EPA rules and relevant court decisions – some dating back to the Reagan administration – reveals that the structure of this rule is consistent with decades of Clean Air Act practice. The Clean Power Plan is novel and historic in that it finally regulates carbon emissions from the nation’s highest-polluting sector. But nothing about the legal structure of the rule is unprecedented.

The Obama administration recently reversed its plan to allow drilling off of the mid-Atlantic coast, which it proposed in 2010, suspended after the Deepwater Horizon spill, then floated again in 2015. Critics have attacked the Atlantic decision, arguing that the government is turning its back on much-needed revenue and resources.

But this line of thinking rests on a flawed economic rationale that ignores our ability to revisit decisions in the future. This “now-or-never” fallacy has driven U.S. offshore leasing policy for years. Convincing the Department of the Interior to finally adopt an economically rational approach that values delaying risky decisions required a lengthy advocacy campaign and a federal lawsuit. Offshore leasing decisions can be incredibly complex, and should be informed by balanced economic analysis.

“The reason there is all this focus is that this is arguably the most important environmental regulation ever,” said Richard L. Revesz, the director of the Institute for Policy Integrity at the New York University School of Law. This week, the institute and several other groups will file briefs in support of the E.P.A.’s position in the case.

“If Scalia’s seat remains vacant when the Clean Power Plan reaches the high court, a 4-4 vote would result in an automatic affirmance of the D.C. Circuit’s decision on the rule,” says Jack Lienke, an attorney with the Institute for Policy Integrity at the New York University School of Law.

Last month scholars from the law schools of Columbia University, New York University and the University of California, Los Angeles, released a report that suggested there is a provision in the Clean Air Act that would allow the E.P.A. to require states to reduce emissions that endangered other countries if such countries provided reciprocal protections to the United States.

Richard Revesz spoke with Marketplace about the Supreme Court’s unprecedented ruling, staying the Clean Power Plan until a lower court can rule on its legality.

A few weeks ago, a group of 13 prominent environmental law professors and attorneys released a 91-page report outlining this new approach, which would allow EPA to use existing laws to quickly and efficiently regulate all pollution sources, in all states — not just power plants and cars. The experts concluded, “It could provide one of the most effective and efficient means to address climate change pollution in the United States.”