In the News

The “Social Cost of Carbon” at $40 per ton of avoided carbon emissions is the presumed payoff of cleaner electricity, and more efficient cars and fridges. The White House wants to gut this calculation, but Denise Grab at NYU says it won’t be easy. A federal court upheld this concept nine years ago. “The 2008 case found that the agency had to consider the benefits of greenhouse gas reductions, so it can’t just ignore those effects,” said Grab.

Richard Revesz discusses the expected Trump executive order on climate change and shares his concerns about overturning the Clean Power Plan, the abandonment of the current approach to determining the benefits of carbon dioxide reductions, and the return to coal leases on federal lands.

It’s permissible for a government official to announce the beginning of “a process that might lead to a change in policy,” said Richard Revesz, director of the Institute for Policy Integrity at New York University. But, he said, it would be “very problematic” if the administration explicitly compelled officials to, say, lower the government’s metric known as the social cost of carbon, which estimates the effects of climate change.

Throughout his confirmation hearing and in a recent interview, EPA Administrator Scott Pruitt wrapped himself in the mantle of federalism, calling the shared distribution of power between the federal government and states a “bedrock principle” of environmental laws. Pruitt accused the Obama administration of intruding on the autonomy that environmental laws give to the states and vowed to set this balance right. But Pruitt’s views are inconsistent with any coherent vision of federalism.

Indeed, Pruitt’s comments on CNBC might even hurt any effort at repeal. Opponents could point to them in court as evidence that EPA’s new conclusion was being driven by the administrator’s unfounded views on science rather than careful analysis. “The comment could come to haunt Administrator Pruitt in court in the same way that the ‘Muslim ban’ comment has haunted President Trump in recent rulings,” says Richard Revesz, a law professor at New York University.

Denise Grab, a lawyer with New York University Law School’s Institute for Policy Integrity, said Gorsuch has a “mixed bag” of rulings related to public lands and the environment, yet seems “unusually eager to throw roadblocks in the way of public interest groups who want their day in court.”

Pruitt’s attempt to cast uncertainties about climate change would still not relieve the EPA from its obligation to act, Jack Lienke, a senior attorney at the Institute for Policy Integrity at the New York University School of Law, told Bloomberg BNA.

President Donald Trump and newly confirmed EPA administrator Scott Pruitt appear poised to make sweeping environmental policy changes. But strong environmental regulations remain widely popular. Perhaps as a result, the Trump administration may take a subtle approach in attacking environmental rules. Pruitt and other administration officials appear interested in rewriting guidelines for regulatory analysis and they could cook the books so that environmental protections appear to have few or no benefits and exaggerated costs. The results would be sinister, undermining many current and future safeguards for the environment, workplace safety and other important social issues.

“The agency can’t just ignore the previous rule,” explains Richard Revesz, a law professor at New York University. “It has to make a sound argument for why its new approach is superior — and prove to the courts that it’s not just acting in an arbitrary or capricious manner.” Otherwise, the courts will knock down Pruitt’s attempts to rewrite the rule.

Appellate Judge Neil Gorsuch has been a vigorous critic of the so-called “Chevron doctrine” that gives federal agencies latitude when interpreting ambiguous laws. “Chevron deference became really important in the later part of the Obama administration because Congress hadn’t acted on a number of environmental issues in a while,” said Denise Grab, a senior attorney with Institute for Policy Integrity at New York University School of Law.