In the News

C. Boyden Gray, who helped to draw up the 1990 Clean Air Act amendments as counsel to the first President Bush, and now represents many energy-industry clients as an attorney in private practice, told me in June, after the initial case was dismissed, that there were many legal arguments to be made against the EPA carbon regulations — but he wasn’t convinced by Tribe’s. “You look at Revesz,” he says, “and you say, ‘My God, that is pretty persuasive.”

The Mercury and Air Toxics Standards, also known as “MATS,” are the culmination of a very long regulatory process.

In the final ruling of an historic Supreme Court term, the Obama administration was handed a loss on Monday, but the fallout will likely be minimal. In a 5-4 decision written by Justice Antonin Scalia, the court found that the Environmental Protection Agency (EPA) should have considered costs when it first began the regulatory process for its Mercury and Air Toxics Standards.

“The court didn’t do anything to this rule. The case now gets remanded to the D.C. Circuit,” Richard Revesz, director of the Institute for Policy Integrity and dean emeritus of NYU Law School, said shortly after the ruling was released. “I don’t think this is any blow at all. I think it is pretty clear that this rule will ultimately be upheld.”

One of the U.S. government’s largest sources of non-tax revenue comes from the land it leases to oil, gas and coal companies. Last fiscal year, the federal government generated more than $13 billion from drilling and mining activities on its land – but it should have made hundreds of millions of dollars more. Antiquated pricing rules have given these energy companies access to federal lands at prices that ignore decades of inflation, as well as many environmental and health costs of fossil fuel production.

Richard Revesz, director of the Institute for Policy Integrity, said the early lawsuit and comments received during the EPA’s public comment period will ensure the final rule is legally sound.

“I don’t think it’s even debatable or a close question that he is not circumventing Congress or abusing executive authority,” says Richard Revesz, a professor and dean emeritus at the New York University School of Law. He testified last month on Capitol Hill about Obama’s Clean Power Plan, which would limit carbon emissions from existing power plants. “Not only is the president not acting inconsistently with the will of Congress, he’s doing something he was mandated to do under existing law.”

The fate of 11,000 American lives each year may hinge on whether the Supreme Court Justices understand that fractions can’t be calculated without knowing the denominator.

But even if his claims don’t help Peabody in federal court, they are undoubtedly useful in the court of public opinion, where sentiment can be swayed by legal arguments, however weak, from a scholar of Professor Tribe’s reputation.

“This is one of the most significant environmental rules in our history,” says Richard Revesz, director of the Institute for Policy Integrity at New York University School of Law. “However you look at it, there are going to be winners and losers.”