In the News

One of the most prominent defenders of the administration’s position is Richard Revesz, the director of the Institute for Policy Integrity at New York University law school.

Harvard Law professor Laurence Tribe and New York University Law professor Richard Revesz traded rhetorical blows over the legality of the U.S. EPA’s proposed carbon dioxide rule before a congressional panel on March 17.

When there are two conflicting amendments, Revesz said statutes trump U.S. code unless the code itself was adopted as legislation, which didn’t happen in this case. Revesz said it’s up to the EPA to then interpret the rule.

Richard Revesz, director of the Institute for Policy Integrity at the New York University School of Law, told the subcommittee that the EPA’s proposal falls squarely within its Clean Air Act authority, citing three U.S. Supreme Court decisions upholding the EPA’s authority to regulate greenhouse gases under the act. “The Supreme Court has not stood in the way of this kind of regulation,” he said.

In an amicus brief filed in the U.S. Court of Appeals for the District of Columbia Circuit on Jan. 30, the Institute for Policy Integrity at New York University of Law argues that ever since the current version of Section 111(d) was enacted in the 1990 Clean Air Act amendments, Republican and Democratic administrations have interpreted a so-called Section 112 exclusion in a way that is consistent with the EPA’s authority to regulate carbon dioxide.

But is 111(d) language ambiguous or flatly contradictory? As Jack Lienke noted in a Grist post last year, the Supreme Court faced a similar dilemma in a case last session called Scialabba v. Cuellar de Osorio, which dealt with contradictory statutory language. Kagan, Ginsburg, and Kennedy invoked Chevron and deferred to the Board of Immigration Appeals, the executive agency charged with implementing the statute.

The agency’s consistent and longstanding interpretation of the Clean Air Act is due deference, particularly in the context of the proposed Clean Power Plan, the Institute for Policy Integrity told the U.S. Court of Appeals for the District of Columbia Circuit in a Jan. 30 brief. The institute filed an amicus brief in support of the EPA.

The EPA announced that it will regulate methane emissions from the oil and gas sector directly, rather than relying on voluntary programs or regulating associated pollutants. This a commonsense action that reduces a very potent greenhouse gas while directing valuable natural gas back into the supply chain. The rules, which will be unveiled this summer, will apply to all new oil and natural gas wells, but they will not address emissions from existing sources.

“EPA’s announcement marks incremental progress, but thus far, the agency fails to regulate existing oil and gas sources, which are projected to be responsible for up to 90 percent of emissions in 2018,” Jayni Hein, policy director at the Institute for Policy Integrity at the NYU School of Law, said in a statement. “This is a major concern in states like North Dakota, where oil production is booming, yet methane capture technology remains far behind.”

“Results like this should give a pause that maybe we should start being more cautious,” Peter Howard, an economist at NYU Law School’s Institute for Policy Integrity, told VICE News. “Maybe this doesn’t happen, but if it does it could be quite costly, and we should take this risk into account.”