In the News

Max Sarinsky, a senior attorney at the Institute for Policy Integrity at New York University School of Law, called Cain’s ruling “legally incoherent,” arguing that it’s put federal agencies in a Catch-22 as they attempt to assess the cost of climate change in major decisions. “There’s a fair amount of legal precedent for these agencies to consider climate science,” Sarinsky said. “And this injunction prevents them from using these climate estimates.”

This paper’s recent editorial inappropriately maligns the federal government’s valuation of the harm caused by climate pollution as politically motivated.

It’s unusual for the supreme court to hear a case where there is no active rule to challenge, according to Richard Revesz, a leading expert in environmental law at the New York University School of Law. “It surprised me they took this case, this would be an excellent candidate for dismissal,” he said. “In normal times, when the court wasn’t so skeptical of regulation, this case would’ve been dismissed. It would have a pernicious consequences if it were allowed because it could severely restrict agencies’ ability to regulate and these power stations are such big emitters.”

The U.S. Supreme Court is set to hear oral argument in a case challenging the EPA’s authority to regulate greenhouse gas emissions from existing power plants. Richard L. Revesz, a professor at New York University School of Law, argues the court should dismiss the case because there is no regulation in place and none that would be revived because of anything the court might do.

Tellurian Inc.’s Driftwood LNG facility and Equitrans Midstream Corp.’s contentious Mountain Valley Pipeline are among dozens of proposed natural gas projects set to face new scrutiny after U.S. regulators tightened their criteria for approvals. Near-term decisions could be made in at least eight projects, said Sarah Ladin, an attorney with the Institute for Policy Integrity at New York University School of Law.

“A lot of the agencies are sort of in a ‘damned if we do, damned if we don't' situation, where they’re often under legal requirements to take certain actions ... but this injunction is prohibiting them from sufficiently analyzing the climate impacts of those actions,” said Max Sarinsky, senior attorney at the Institute for Policy Integrity at the New York University School of Law. 

Richard Revesz, who directs the Institute for Policy Integrity at the New York University School of Law, said the Louisiana judge’s decision was “one of the most aggressive and ill-founded administrative law opinions” that he has read in recent years. Revesz called it “unprecedented” for a judge to intervene so early in the rulemaking process to tell the government it cannot study a potential risk. “I don’t know how a court could tell a president that the executive branch cannot estimate the harm of a pollutant,” he said. “It’s like saying, ‘I’m sorry, the executive branch cannot study whether something is a carcinogen.’”

The greenhouse gas emissions “trigger” provides new clarity for how FERC processes and regulates gas projects, said Sarah Ladin, an attorney at the Institute for Policy Integrity at the New York University School of Law. She noted that FERC has been completing supplemental environmental impact statements for some gas projects over the last year, despite having already issued environmental assessments for the same proposals. “We won’t have to see the delays we saw, where there’s an EA first and [then] a supplemental EIS,” Ladin said.

Louisiana's recent win in litigation that barred President Joe Biden's administration from using a contested calculation for determining the "social cost of carbon" could upend federal oil and gas lease sales planned in the coming months. Interior officials are "sort of in a 'damned if we do, damned if we don't' scenario," New York-based think tank Institute for Policy Integrity senior attorney Max Sarinsky said. This injunction "prohibits them from using the best available metric to assess climate impacts of their lease sales. If they do not include that assessment, that of itself could be problematic."

The U.S. Department of Justice declined to say whether it will appeal Judge Cain's order to the Fifth Circuit, but even if the case ultimately ends in the social cost of carbon and other metrics being struck down, that doesn't mean the end of the Biden administration's forward motion on climate change-related regulations, said Max Sarinsky, a senior attorney at the Institute for Policy Integrity at NYU School of Law. To begin with, only the current social cost of greenhouse gas metrics are at issue in the litigation, Sarinsky said. "This doesn't prohibit agencies from using any evaluations of the social cost of greenhouse gases — it only prohibits them from using the Interagency Working Group's evaluations and some of the Interagency Working Group's methodologies," he said.