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Conservative Supreme Court justices’ focus on the “major questions” doctrine during recent arguments over the Biden administration’s COVID vaccine mandate could spell trouble for EPA’s greenhouse gas authority under the Clean Air Act, which is facing similar challenges in a separate high court suit, warns Richard Revesz, who directs New York University School of Law’s Institute for Policy Integrity. Revesz in a follow-up interview with Inside EPA says given the significant role that the major questions doctrine played in the OSHA arguments, “I am fairly certain that the justices will have a ‘major questions discussion’ in the opinion when it comes out. And the question is, what they say? If they take a very aggressive view that it applies broadly, then that has significant implications for West Virginia and other regulatory cases.”

Two pending lawsuits — led respectively by Louisiana’s Jeff Landry and Missouri’s Eric Schmitt — not only mount an unprecedented and dangerous attack on science, but also bungle bedrock legal principles. The lawsuits challenge the federal interagency working group’s ongoing assessment of the social cost of carbon, which estimates the incremental cost to society of a unit of greenhouse gas emissions.

In an essay in The Regulatory Review, Jack Lienke and Richard L. Revesz of the Institute for Policy Integrity at New York University School of Law argued that EPA’s attempt at replacing the Clean Power Plan represented a drastic about-face. Lienke and Revesz observed that the Trump Administration had played up the Obama-era regulations as “draconian” and a huge cost to the U.S. energy sector, but EPA’s final proposal justified a new plan by stating that no changes to emissions or health outcomes would have been achieved by the Clean Power Plan. Lienke and Revesz criticized EPA for attempting to obscure the effects of jettisoning the Clean Power Plan and engaging in less-than-clear regulatory analysis.'

The Regulatory Review is pleased to highlight our top regulatory essays of 2021 authored by a select number of our many expert contributors. Pieces written by Policy Integrity's Justin Gundlach, Peter Howard, and Richard Revesz are featured in the list.

The Supreme Court’s consideration of the "major questions doctrine," a judicial doctrine that can limit agency authority to act on major issues facing the country, comes after a “huge uptick” in litigants—including the Trump administration, Republican attorneys general, and business groups—invoking it over the past decade in attempts to invalidate regulations, said Richard Revesz, who’s written about its recent use.

As the new year opens, President Biden faces an increasingly narrow path to fulfill his ambitious goal of slashing the greenhouse gases generated by the United States that are helping to warm the planet to dangerous levels. “While it’s important to do things quickly, it’s also important to do a good job,” said Richard Revesz, a professor of environmental law at New York University. He noted that the Trump administration moved rapidly to undo former President Barack Obama’s policies and most of those efforts were considered rushed and sloppy, leading to a high rate of decisions being overturned by courts.

Increasingly it appears that Presidents only have two years to make policy if they want it to last. This is the thesis of a forthcoming article by two legal experts who argue that President Donald J. Trump made aggressive use of a set of policy-reversing tools during his term and that President Joseph R. Biden has followed suit. The article’s authors—Bethany A. Davis Noll, the executive director of the State Energy & Environmental Impact Center at the NYU School of Law, and Richard L. Revesz, AnBryce Professor of Law and Dean Emeritus at the NYU School of Law—contend that Presidents can combine these tools to roll back recent policy, making any regulations issued in the last two years of the previous presidency vulnerable to repeal.

MATS's issuance capped a two-decade regulatory tug of war that originated with the 1990 Clean Air Act Amendments. Based on EPA projections of the expected health gains, tens of thousands of Americans had their lives cut short by toxic power plant pollution in the interim. One of MATS’s lessons is that “there are real costs to delay,” said Jack Lienke, regulatory policy director at the liberal-leaning Institute for Policy Integrity, based at New York University. “And real benefits to the people who would rather that the rules not be issued at all.”

A federal court in Louisiana heard oral argument Dec. 7 in a case brought by Louisiana Attorney General Jeff Landry (R) that is gaining national attention. The case seeks to prevent federal agencies from considering scientific estimates of climate change impacts. It could have profound consequences, but not the ones Landry suggests. While Landry’s lawsuit is cloaked in hyperbole about federal takeovers and taxes, no such risks exist. But the suit does threaten to upset settled, bipartisan principles of administrative law.

Policy Integrity’s comments make two categories of recommendations: (1) improving public participation, and (2) improving analysis.