In the News

Environmental Protection Agency performance standards are needed to constrain emissions of “fugitive” methane generated by hydraulic fracturing from upstream sources such as natural gas wells, pipelines and storage tanks, Richard Revesz said at a House subcommittee hearing today.

Though the opinion is a win for the EPA, environmental law expert Michael A. Livermore said Scalia’s opinion could sow confusion about who really won. That’s because, though Scalia handed a win to the EPA, the rhetoric in his opinion reads as a fiery reprimand of the agency for “laying claim to extravagant statutory power over the national economy.”

The decision doesn’t touch President Barack Obama’s more comprehensive climate-change proposal released June 2 to cut carbon emissions from existing power plants. No precedent was set that could alter that plan, said Ricky Revesz, director of the Institute for Policy Integrity at New York University.

“The vast majority of emissions the EPA sought to regulate it can regulate,” Professor Richard Revesz, director of the Institute for Policy Integrity at the New York University School of Law, told reporters June 23.

“The only thing that EPA could have done if it had won across the board that it won’t be able to do now is regulate another 3 percent of emissions,” said Richard Revesz, a New York University School of Law professor who filed a brief support EPA in the case. “That’s all that’s at stake.”

“This is not doing much of anything to hobble EPA,” explains Richard Revesz, director of the Institute for Policy Integrity at the New York University School of Law, adding: “Nothing that is being done today calls into question the EPA’s ability to regulate power plants, both new and existing, under section 111 of the Clean Air Act.”

The court’s decision doesn’t greatly affect the scope of EPA’s permitting authority, said Richard Revesz, dean emeritus at the New York University School of Law and director of the Institute for Policy Integrity.

Others say the proposed emissions cuts are precisely what’s needed to boost carbon capturing.

“There has never really been a financial incentive to develop carbon-capture-and-storage technology because facilities could just pollute for free,” said Michael Livermore, an associate professor at the University of Virginia School of Law.

“Why spend a billion dollars developing a new technology to cut pollution that you don’t have to pay for? It doesn’t make any financial sense.”

Who “wins” as a result of EPA’s proposed regulation of carbon emissions from existing power plants? Society at large. As the Regulatory Impact Analysis accompanying EPA’s proposal makes clear, the social benefits of reducing power plants’ emissions greatly outweigh the costs. EPA estimates that total compliance costs will top out at $8.8 billion in 2030 (and that’s assuming that states choose the pricier option of solo compliance rather than entering into cost-lowering regional agreements). Nine billion may sound like a hefty price tag, but it is dwarfed by an estimated $31 billion in climate benefits that will be generated by the rule’s carbon reductions.

The EPA estimates air-quality improvements from lower levels of fine particles and ozone precursors will prevent between 2,700 and 6,600 premature deaths during 2030, accounting for between $27.3 billion and $66.7 billion in benefits.

The formulas for quantifying the impact of air pollutants such as fine particles and ozone on asthma and other ailments are well-established, said Jack Lienke, a legal fellow at the New York University Law School’s Institute for Policy Integrity.

“If you’re going to perform a cost-benefit analysis, you have to attempt to quantify the benefits as well,” he said. It’s “not unusual” for the EPA to count such ancillary benefits along with indirect costs in making a cost-benefit determination, citing a regulation requiring reductions in mercury emissions as a precedent.