In the News

Court fights over proposed Gulf Coast gas export facilities are exerting new pressure on federal energy regulators to reevaluate whether it is in the public’s best interest to ship fossil fuels to foreign countries as the world confronts climate change. Section 3 of the [Natural Gas Act] tells FERC it can approve or deny an application for siting an LNG facility, but the statute doesn’t provide a legal standard for how to make that decision, said Jennifer Danis, federal energy policy director at the Institute for Policy Integrity.

According to decades’ worth of studies compiled Bethany Davis Noll, litigation director at the Institute for Policy Integrity, federal agencies have historically prevailed in about 70 percent of the legal challenges to their regulatory actions. But Noll’s study reviewing 278 Trump-era agency actions (48 involving immigration) found that federal agencies prevailed only 23 percent of the time.1 And she found that the Trump administration’s immigration policy win rate was only 10 percent (five out of 48 cases).

As winter approaches, fears are mounting that parts of our energy system could fail again during severe weather. Many experts around the country are working to ensure that the grid remains reliable, as well as affordable, as the transition toward cleaner energy accelerates: This was a major topic at Thursday’s Federal Energy Regulatory Commission technical conference.

The Biden administration directed agency policymakers on Thursday to more heavily weigh how their economic regulations will help or hurt worker safety, children’s health, and consumer prices decades into the future. The 93-page memo instructs agencies to pay more attention to how the costs and benefits of their regulations vary by person… “Costs accrue for the most part in the short term,” said Max Sarinsky, an attorney that studies regulation at New York University School of Law. “But the benefits accrue decades or more into the future.”

Max Sarinsky, a senior attorney at New York University School of Law's Institute for Policy Integrity, said there will be some factors on an agency's side as well during future litigation. He said that for one thing, the estimates, which have already been used in many rules and other decisions, go through an extensive process before finalization that incorporates a public comment period, a peer review process and the best available science at the time. "To win an argument that the standard is high, you have to show that it's arbitrary and capricious to use these numbers," Sarinsky said. "So to say that it's arbitrary and capricious to use Nobel Prize-winning work seems a little difficult to me."

The White House on Thursday revised the way agencies weigh regulatory costs and benefits for the first time in 20 years. It resulted in new guidance that experts say will make it tougher for industries to challenge rules on the basis of their economic costs, and easier for agencies to justify stronger safeguards for public health and the environment... “This update certainly supports higher valuations of the social cost of carbon because it is broadly consistent with the approach that EPA is taking,” said [Max] Sarinsky of NYU.

Burcin Ünel, executive director of the Institute for Policy Integrity at New York University School of Law, says the new guidance “will help government agencies catch up to best practices in economics [and] guidance will help ensure that regulators do not ignore equity concerns, which have long been a blind spot in most rulemakings.

The change is consistent with voluminous academic research into discounting, and is “actually a conservative estimate,” said Peter Howard, economics director at the New York University School of Law’s Institute for Policy Integrity. A future administration could raise the discount rate again, but would “have to provide a rational justification” for doing so, Howard said.

Large parts of the eastern United States are at an elevated risk of electricity outages if extreme storms cripple power grids this winter, according to the U.S. grid monitor. The FERC/NERC report suggests an independent research group analyze whether more natural gas pipelines and gas storage facilities are needed to improve grid reliability and the gas heating system. A study about pipeline needs should account for the fact that other less-expensive infrastructure could be used instead, said Jennifer Danis, federal energy policy director at the Institute for Policy Integrity, a think tank at NYU School of Law.

Environmental justice organizations and local municipalities had an opportunity to learn about a new resource designed to help them identify, navigate, and pursue federal funding for environmental justice by attending a webinar on Monday. This webinar introduced attendees to the United States Environmental Protection Agency (EPA) Environmental Justice Thriving Communities Technical Assistance Center (TCTAC) for EPA Region 2, from Harlem to Newark. Among the speakers was Al Huang, Environmental Justice Director at the New York University School of Law Institute for Policy Integrity