In the News

Natasha Brunstein & Donald L. R. Goodson... [give] us a solid overview of the MQD’s triggers that is increasingly being picked up by advocates and academics. In their telling, the MQD is triggered in “extraordinary” cases where an agency action is (1) “unheralded” and (2) “transformative"... Richard L. Revesz & Max Sarinsky, Regulatory Antecedents and the Major Questions Doctrine (Dec. 12, 2022). If you work at a federal agency, please, please, please read this paper.

The White House has proposed a new rule to streamline permitting for clean energy and other infrastructure projects under the National Environmental Policy Act, or NEPA, a bedrock law that requires federal agencies to conduct an environmental review before approving any major project. Max Sarinsky, senior attorney at New York University’s Institute for Policy Integrity, described the rule as “fairly modest and incremental” to E&E News. “We’re in an era where preserving the environment often means building new things,” he said. “I think these regulations are trying to be sensitive to that.”

While ecosystems have sometimes appeared in the cost-benefit assessments that agencies must write to support their rules, policies and projects, there has never been a governmentwide directive or guidance for doing that accounting. As a result, ecosystem values are treated as secondary to more easily quantified benefits, Richard Revesz, administrator of OMB’s Office of Information and Regulatory Affairs and co-founder of the Institute for Policy Integrtity, along with OSTP Director Arati Prabhakar wrote in a blog post Tuesday.

The White House Council on Environmental Quality proposed long-awaited regulations Friday that would streamline permitting under the National Environmental Policy Act. Federal agencies would need to meet set deadlines for environmental reviews — as required by this year's debt ceiling deal — but also consider how energy projects impact climate change and communities historically overburdened by pollution. Max Sarinsky, a senior attorney at New York University's Institute for Policy Integrity, described the draft as "meaningful" but "also fairly modest and incremental."

Valuing the cost of climate pollution is tremendously useful for policymakers as they weigh the benefits and drawbacks of potential strategies to mitigate climate change. Earlier this year, Canada update its climate-damage valuations for the first time since 2016. While some politicians have mischaracterized the update for political gain, in reality this commonsense update reflects the latest advances in science and economics.

If the Supreme Court next term overrules Chevron USA v. Natural Resources Defense Council, the era of “Chevron deference” will have been displaced by what ought to be called the era of “West Virginia skepticism.”  There is, to be sure, some parallelism in the structure of the two doctrines. In simplest terms, each is offered up as a two-step test. Still, much remains to be clarified in the implementation of West Virginia. A recent study by Natasha Brunstein of the Institute for Policy Integrity found that lower court “judges have taken vastly different approaches to defining and applying the doctrine—even within the same circuit—illustrating that many judges view the doctrine as little more than a grab bag of factors at their disposal.”

Last year, the Supreme Court sided with West Virginia in rejecting a different (Obama-era) EPA plan. “The West Virginia decision left intact EPA’s obligations to reduce greenhouse gas emissions that endanger public health from the power sector,” says Dena Adler, an attorney at the Institute for Policy Integrity at New York University School of Law, in an emailed statement. The 2022 ruling left pathways available to the EPA, she says, and “the agency has carefully walked those lines in this proposal.”

Several attorneys and FERC watchers see an ambiguous directive in the law governing FERC’s oversight of LNG. The language was last updated in 2005, at a time when virtually no natural gas was being exported from the continental U.S. While the law — the Natural Gas Act — directs FERC to “issue or deny” applications to site LNG import and export terminals, it gives the commission “absolutely zero guidance” for how to make that decision, said Jennifer Danis, federal energy policy director at the Institute for Policy Integrity.

EPA has previously set standards that require industries to invest in new types of pollution controls, said Dena Adler, an attorney with New York University’s Institute for Policy Integrity. “The history of the Clean Air Act is filled with regulations where technologies were projected to be very expensive,” she said. “And after the regulations came down, industry figured out how to install these control technologies better and cheaper.”

The update to how agencies assess costs and benefits of proposed regulations will help ensure that economic analysis applies state-of-the-art approaches to a range of issues, from valuing future impacts to considering distribution and equity, according to Max Sarinsky, senior attorney at the Institute for Policy Integrity at the New York University School of Law.