In the News

Democrats’ projected hold on their slim Senate majority in the next Congress could give the party and the Biden administration additional flexibility to confirm dozens of judicial picks and remaining nominees at EPA and other agencies that are important to their environmental policy agenda. President Joe Biden has tapped Richard Revesz to serve as the administrator of the White House Office of Information & Regulatory Affairs that oversees EPA and other agencies rules, and the Senate environment committee has scheduled a Nov. 17 hearing to consider two Biden picks to serve on the Chemical Safety Board.

The White House Council on Environmental Quality (CEQ) is being roundly urged to set clearer metrics and be more transparent in the scorecard it is developing to track EPA and other agencies’ progress implementing the Biden administration’s Justice40 initiative, with dozens of groups submitting comments in response to CEQ’s August request for information (RFI). Al Huang, who directs the EJ program at the Institute for Policy Integrity at NYU’s School of Law, tells Inside EPA that the scorecard creates goals in three buckets: educing disproportionate burdens in communities; ensuring agencies fulfill their Justice40 spending obligations; and establishing EJ infrastructure and creating systems within agencies to confront EJ issues. However, Huang notes there are “a lot of question marks” about how the administration will collect data, what role, if any, EJ communities will have in contributing to the scoring, and whether the flow of money alone will be considered a benefit to EJ communities regardless of how it is used.

EPA is issuing a draft update to the social cost of carbon (SCC) metric that floats significantly higher estimates of the climate-related damage caused by greenhouse gases than the Biden administration’s interim values, as well as a new dynamic approach to setting the “discount rate” used to reduce the value of future benefits from curbing emissions. In response to EPA’s release of the draft estimates, Peter Howard, economics director at New York University’s Institute for Policy Integrity, said they “will contribute to better policy choices. These metrics ensure that the benefits of climate action are accurately reflected in government decisionmaking. The revision is long overdue, as it has been almost a decade since the last comprehensive update and five years since [NASEM] laid out a roadmap.”

Federal regulations touch virtually all aspects of American lives, so the Biden administration wants to hear from you on how it can boost public participation in the rulemaking process. Upon taking office, almost two years ago, President Biden issued a memo on modernizing regulatory review, which has not been finalized yet. The president nominated Richard Revesz, most recently the AnBryce Professor of Law and Dean Emeritus at the New York University School of Law, to lead OIRA.

The Yale Journal on Regulation's blog compiled a reading list on the "major questions" doctrine. The list features Mangling the Major Questions Doctrine by Natasha Brunstein & Richard L. Revesz, which attributes the expansion of the doctrine over the last six years to its aggressive use by the Trump Administration.

Peggy Shepard, the White House Environmental Justice Advisory Council co-chair, gave the administration a grade of D in September for its environmental justice work so far, telling a New York University Institute for Policy Integrity event that, in order to do something as transformative as the administration is seeking, “you have to restructure . . . but that has not happened and that is really the crux of the problem, that structurally, nothing has changed in any of these agencies.”

The issue represents one of multiple instances in which critics of strict climate- and energy-related rules are attempting to leverage this summer’s Supreme Court ruling in West Virginia v. EPA that curbed the agency’s greenhouse gas regulatory authority under the major questions doctrine, which says that policies with significant political or economic effects require “clear” statutory authority. But Oct. 20 supplemental comments from the Institute for Policy Integrity (IPI) at New York University argue that West Virginia should not apply to FERC’s long-pending gas review policies, which would require consideration of upstream and downstream greenhouse gas emissions when assessing projects under the Natural Gas Act (NGA) and the National Environmental Policy Act (NEPA).

The new study could add to calls to limit public health risks from gas stoves. Earlier this year, the Institute for Policy Integrity (IPI) at New York University pressed the Consumer Product Safety Commission to address such risks -- an effort that comes as California and various local governments seek to limit gas-fired appliances over climate change concerns.

If confirmed, Revesz would be uniquely positioned to help shield the president’s climate regulations from legal scrutiny, a challenge that has derailed the administration’s decisions repeatedly. While at New York University, Revesz tracked and evaluated the Trump administration’s poor record defending its environmental decisions in court.

EPA’s Science Advisory Board (SAB) is urging the agency to begin to systematically quantify the environmental justice (EJ) benefits of its air pollution rules, a potentially sweeping recommendation that could help the agency justify stricter controls on mobile and stationary sources. The recommendation is spelled out in a Sept. 27 draft SAB report on EPA’s proposed phase 3 heavy-duty truck and engine rule recently posted to the board’s website ahead of a Nov. 3 meeting where the advisors are slated to discuss it. Meredith Hankins, an attorney with the Institute for Policy Integrity (IPI) at New York University law school, said it was noteworthy that the proposed rule included the first-time distributional impact analysis evaluating baseline conditions as well as the results if the proposed rule’s more stringent option were implemented.