In the News

When Clean Air Act amendments were enacted in 1990, the new statutory language contained a rare glitch. Two different and contradictory amendments to Section 111(d) — one from the House, the other from the Senate — were never reconciled, but instead passed both chambers and both became enrolled into law. Michael Livermore, senior adviser at New York University’s Institute for Policy Integrity, said the courts are likely to defer to the EPA on its interpretation of the statute, rather than try to mine the law’s language for congressional intent.

The Supreme Court allowed a narrow review of a U.S. EPA greenhouse gas rule yesterday, upholding most of the agency’s landmark climate change decisions while still challenging EPA’s authority in what could be the most important climate change case since 2007’s Massachusetts v. EPA. Richard Revesz, director of New York University’s Institute for Policy Integrity, said that nothing the court would decide would carry over to EPA’s efforts to craft standards for new and existing power plants, which will roll out in accordance with President Obama’s Climate Action Plan.

The U.S. Supreme court will review whether the Environmental Protection Agency’s decision to regulate greenhouse gas emissions from vehicles necessarily triggers similar Clean Air Act requirements to regulate stationary sources. Several attorneys said the Supreme Court’s ruling is unlikely to affect the EPA’s authority to issue carbon dioxide performance standards for fossil fuel-fired power plants. The EPA proposed new source performance standards for new power plants on Sept. 20, and President Obama has ordered the agency to propose similar standards for existing units by June 2014. “Nothing that happened today raised any question about EPA’s authority to do any of that,” Richard Revesz, director of the Institute for Policy Integrity at the New York University School of Law, told reporters.

The Supreme Court on Tuesday agreed to review whether the Environmental Protection Agency has the power to require greenhouse gas permits for big, stationary pollution sources such as power plants, factories and refineries. “By deciding to review only one narrow permitting question from an expansive D.C. Circuit opinion upholding EPA’s power over greenhouse gas emissions, the court leaves intact EPA’s ability to regulate climate-altering pollution from both stationary and mobile sources,” said Professor Richard Revesz of the Institute for Policy Integrity at New York University’s law school.

Climate change is certainly on the top ten list of our planet’s biggest problems. Also on that list is the insufficient actions humans have taken to address climate change. The risks of increased global temperatures are great, as the IPCC’s recent report release shows, and too many nations, including the United States, have not properly heeded the warnings by taking serious steps to reduce their greenhouse gas output.

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: