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The next set of EPA rules also face legal uncertainty. The provision of the Clean Air Act used for greenhouse gas regulation has been rarely used before, and never for an area this far-reaching, said Michael Livermore, professor of law at University of Virginia and senior adviser at the Institute for Policy Integrity in New York.

There are two notable ironies here. One, as Richard Revesz, director of New York University’s Institute for Policy Integrity, points out, is that by regulating only new power plants, and not those that are already belching CO2, we risk polluting even more.

“Valuing the environmental benefits here — it’s still a developing area,” said Denise Grab, a legal fellow for the Institute for Policy Integrity at New York University School of Law. Grab’s group is pressing EPA to broadly account for ancillary benefits in its cost-benefit analysis. “We know that there’s a tendency to underestimate these things and that costs are often overestimated,” she said, noting that EPA’s first stab at analyzing the benefits of post-construction stormwater controls in 1999 failed to account for major factors, such as decreased stream bank erosion and reduced water pollution because there would likely be fewer combined sewer overflows.

President Obama has been left little choice but to deal with greenhouse gases through the Environmental Protection Agency. To that end, his announcement that his administration will subject existing power plants to regulation is one of the best stand-alone actions he could take. By doing so, he corrects over 40 years of bad policy—not just environmental and public health policy, but economic policy as well, under which federal regulation of new sources did not generally extend to existing sources.

Court Ordered Bush Administration To Assign A Social Cost Of Carbon Above $0. New York University School of Law’s Institute for Policy Integrity noted that a court chastised the National Highway Traffic Safety Administration (NHTSA) in 2007 for assigning a social cost of carbon of $0 in setting fuel economy standards, and that “even NHTSA admitted that its $0 valuation was unsupported.” The Institute further noted that while the social cost of carbon is difficult to quantify, agencies also attempt to estimate the costs and benefits for variables such as traffic noise and energy security:

Jason Schwartz, legal director of the Institute for Policy Integrity, says the president’s remarks signaled that the regulations on existing power plants to be produced by the EPA will allow these states to comply using their efficient market mechanisms that produce GHG emissions at lower costs. “The single word we were most excited to hear in the president’s speech and his plan was flexibility,” he says.

“In an ideal world, the standards for new and existing would be proposed together, having been developed together in a way that maximizes total net benefits,” said Richard Revesz, director of the Institute for Policy Integrity and dean emeritus of New York University School of Law.

Such assertions are “wildly overstated,” said Richard Revesz, the director of the Institute for Policy Integrity at New York University. He framed Boehner’s remark as the latest iteration of a “job-killer meme” that has surfaced frequently in recent years as Republicans have sought to drum up fears about Obama’s environmental efforts.

Jason Schwartz, legal director for the New York University Institute for Policy Integrity, said the regulation of existing power plants would require EPA to work closely in partnership with the states, which would ultimately slow the regulation’s development.

The Clean Air Act “authorizes EPA to do a lot with respect to greenhouse gases” and also demands a great deal of the agency, said Jason Schwartz, the legal director at New York University’s Institute for Policy Integrity, the law school’s advocacy arm. Schwartz’s group is going to be looking for so-called market mechanisms that allow power plants to trade or borrow emission credits, for example.