In the News

The Clean Air Act’s success reveals the flaws in the standard critique of the administrative state.

Publicly owned lands in the United States contain many of the country’s most iconic natural areas as well as a wealth of natural resources. But these taxpayer-owned assets are on the verge of being given away for a fraction of their true value in an effort to prop up the uneconomical mining and drilling operations of some fossil-fuel companies, who clearly have the Department of the Interior’s ear.

The Trump Interior Department could not rush through an impact statement quickly just to get it out of the way, according to Jayni Foley Hein, policy director at New York University’s Institute for Policy Integrity. That’s because the National Environmental Policy Act, its regulations, and various court decisions have laid out firm guidelines about what a Programmatic Environmental Impact Statement must include, she said.

The Trump administration’s new draft plan for offshore drilling represents a colossal shift in policy by proposing to make nearly all U.S. coastal waters available for oil and gas exploration. The administration has framed this proposal as a way to achieve “energy dominance,” but this claim doesn’t add up: The United States is already the world’s number one oil and natural gas producer. What is clear is that the administration’s approach entails major environmental and social risks and ignores basic economic facts, making it a terrible deal for the American public.

Michael Livermore, an environmental law professor at the University of Virginia, said that “based entirely on the Department of Interior’s own analysis, drilling off the coast of California is a terrible idea.” He cited a section of the leasing proposal that found waters off Central California did not meet the government threshold for benefits exceeding the costs of oil drilling.

In the Dec. 14 press conference, Trump said the government had taken 67 deregulatory actions through Sept. 30 — with an annual savings to society of $570 million — and had imposed just three new regulations. The administration’s cost figures ignore projected benefits for regulations it has blocked, distorting the actual impacts on society, said Denise Grab, a lawyer with the Institute for Policy Integrity at New York University’s School of Law.

Courts answered several important environmental law questions in 2017, including how the effects of greenhouse gases must be factored into project analyses. In August, a divided D.C. Circuit panel said the Federal Energy Regulatory Commission failed to adequately analyze the greenhouse gas emissions impacts of a project that it approved and ordered the agency to redo its environmental review. Ricky Revesz, a law professor at New York University and director of the Institute for Policy Integrity, said the ruling adds to a growing body of case law showing that federal agencies must meaningfully consider the greenhouse gas emission impacts of their policy decisions.

Alongside those notices the agency released a cost-benefit analysis, which includes estimates of cost savings and climate benefits that the rule would have provided. The EPA’s original proposals to halt the standards had not included those climate benefits, Bethany Davis Noll, litigation director for New York University’s Institute for Policy Integrity, said. Now, in the updated analysis, the agency “monkeyed with the numbers” by adjusting the social cost of methane value.

The U.S. Interior Department this week will try again to delay parts of an Obama-era rule to limit methane emissions from oil and gas production on federal lands. Bethany Davis Noll, the litigation director at the Institute for Policy Integrity at the New York University School of Law, said the administration’s repeated moves to delay “have created substantial uncertainty for the regulated community and put at risk valuable benefits.”

A Sept. 14 decision of an appeals court establishes an argument that could be tested nationwide in other courts to challenge any fossil fuel-related project that might have climate change effects, said Jayni Foley Hein, policy director at New York University School of Law’s Institute for Policy Integrity. These might include natural gas pipelines, oil sand pipelines, coal railroads, and coal export terminals.