In the News

President Barack Obama’s four appointees to the U.S. Court of Appeals for the District of Columbia Circuit are well-regarded attorneys with extensive careers in U.S. Supreme Court appeals and civil rights cases, but their legal backgrounds offer minimal insight into their approach to environmental law. Legal observers will be closely watching the four new additions—Judges Patricia Millett, Cornelia Pillard, Sri Srinivasan and Robert Wilkins—over the coming months as they hear oral arguments and issue decisions in air, mining and other environmental cases. On the administrative area or environmental area, we don’t see a lot of past work that these guys have done,” Michael Livermore, an associate professor at the University of Virginia School of Law and senior adviser at the Institute for Policy Integrity, told Bloomberg BNA.

The Institute for Public Integrity, based at New York University, filed a friend-of-the-court, or amicus, brief this morning, saying EPA’s treatment of carbon dioxide as a pollutant does not violate the Clean Air Act. The group asserted that the EPA was right to give carbon dioxide equal weight to other pollutants in the agency’s first greenhouse gas regulations, rules that are being challenged in the U.S. Supreme Court by a coalition of utilities, manufacturers and business groups. The last 30 years of regulation and statutory amendments show that Congress intended the agency to manage all regulated pollutants, not just ones that affect local air quality, states the brief. “The truth of the matter is that EPA’s position has been consistent for 30 years,” said Richard Revesz, faculty director at Policy Integrity.

Two of the most important health standards ever adopted by the Environmental Protection Agency to reduce harmful air pollution from power plants had their day in court last week. Actually two courts: the Supreme Court heard arguments on EPA’s Cross-State Air Pollution Rule (CSAPR) while the U.S. Court of Appeals for the D.C. Circuit, a three-judge panel heard challenges from industry, conservative states and some environmental groups to EPA’s Mercury and Air Toxic Standards (MATS) for coal- and oil-burning power plants. Professor Richard Revesz, director of the Institute for Policy Integrity at the New York University School of Law, “thought that the argument went very well for the government, for EPA” during the CSAPR hearing in the Supreme Court. Getting to the heart of the matter, he observed that “the government was able to engage the justices on its core point, which is that costs can be taken into account in setting the pollution control burden between upwind and downwind states, and that’s the core of the case.”

In what topsy-turvy world would we find large energy companies like the Ohio Valley Coal Corporation suing in the Supreme Court to ask for more stringent, complicated, and expensive environmental regulations? Our world, it turns out. Yesterday, several large energy companies argued against EPA’s use of a flexible, market-based approach to cutting air pollution that crosses state lines. Their argument prevailed in the U.S. Court of Appeals for the D.C. Circuit, where it derailed an EPA regulation that provides enormous benefits (estimated at $120 and $280 billion per year at the time the rule was proposed, including tens of thousands of lives saved and over a million missed days of work or school avoided per year) with a cost of under $1 billion per year.

After the Supreme Court’s December 10th arguments on the EPA’s cross-state air pollution rule, what precedent could the court set with its decision? During this segment of OnPoint, Richard Revesz, director of the Institute for Policy Integrity at the New York University School of Law, gives his impressions of the arguments and justices’ reactions. He also talks about the impact the court’s decision could have on the Obama administration’s climate and energy agenda.

In one of the most high-profile environmental cases of the Supreme Court term, the justices—with Justice Alito recusing himself—will consider on December 10 the EPA’s 2011 rule for air pollution that drifts across states lines. The EPA asked the court to take the case after the U.S. Court of Appeals for the D.C. Circuit struck the rule down in August 2011. Policy Integrity director Richard Revesz expects the D.C. Circuit ruling will be reversed. “I don’t think it’s going to be one of those typical 5-4 or in this case 4-4 cases on ideological lines.” Meanwhile, down the street from the Supreme Court, the D.C. Circuit will hear a broad challenge from industry groups and several states to the EPA’s December 2011 mercury and air toxics standards for power plants.

EPA is on the right track in its effort to reduce greenhouse gas emissions, but on the wrong track in its insistence on using command-and-control style regulations and hand-outs to specific industries to do so. Instead of a biofuels mandate or any other command-and-control regulation, EPA should select the optimal goal—a lower level of carbon emissions from vehicle fuels—and let the market decide how best to get there. Set American ingenuity and industry to the task of cleaning up climate-change-causing pollution and we will certainly reach our goal.

Balanced anti-capture review needs to correct for the wide range of effects that outside pressure can have on agency decision making. Limiting review to agency action places an entrenched bias at the heart of OIRA review, sapping normative force from its anti-capture justification. To remedy this problem, we propose a mechanism to review inaction through review of petitions for rulemakings that have been submitted to agencies, but which have been denied or have languished.

The U.S. Supreme Court upheld the EPA’s fundamental Clean Air Act authority to regulate greenhouse gases when it agreed to hear only a narrow challenge to the agency’s various greenhouse gas regulations, panelists said at a forum. Environmental groups and the EPA “got 98 percent of what they wanted” from the Supreme Court’s decision, Richard Revesz, director of the Institute for Policy Integrity at the New York University School of Law, said at an Oct. 30 forum sponsored by his organization.

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 in conference, 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.