In the News

The Supreme Court is expected to issue a decision in the coming days or weeks that could curtail EPA’s ability to drive down carbon emissions at power plants. But it could go much further than that. Ricky Revesz, director of the Institute for Policy Integrity at New York University Law School, said he expected the court to grapple with the major questions doctrine in the West Virginia case, though not the nondelegation doctrine. Revesz said the case could strike an incremental blow to agencies’ ability to regulate — especially when added to a pile of Supreme Court decisions like the OSHA and CDC cases. The major questions doctrine has only existed for a couple of decades, and in that time it has appeared in Supreme Court opinions maybe twice a decade, he said. Now the pace at which the high court is invoking it is “on steroids,” he said. “Every decision that strikes down a rule by referencing the major questions doctrine is worrisome from the perspective of the ability of agencies to do what they've been doing for 80 years since the New Deal, and which the court now seems to want to constrain in significant ways,” Revesz said.

The coalition argues that the USPS signed a contract with Oshkosh before releasing those reviews and did not consider more viable alternatives that would've included a greater percentage of electric vehicles, among other alleged violations. Bethany Davis Noll, executive director of the State Energy & Environmental Impact Center at New York University School of Law, says that the violations are pretty clear cut. The USPS released its environmental review a year to the day after announcing the contract. Noll says that not only does this fail to meet the most basic standards of NEPA, it's also a failure to consider viable alternatives to the plan. Noll says that the USPS considered three alternatives: 100 percent internal combustion engine vehicles, 100 percent EVs, or do nothing. She says that those aren't reasonable alternatives, saying that a judge would find them arbitrary and capricious. "If you had a 50 percent or 75 percent electric fleet it would be much cheaper," she said.

The Biden administration on Thursday will move to restore authority to states and tribes to veto gas pipelines, coal terminals and other energy projects if they would pollute local rivers and streams, reversing a Trump-era rule that had curtailed that power. Richard L. Revesz, a professor of environmental law at New York University, said he did not believe the actions by the Biden administration would affect prices at the pump, since the Trump administration’s limits would remain in place until the Biden rule is finalized, most likely next year. “Keeping the Trump rule in place is not going to keep gas prices low, and removing the Trump rule is not going to raise gas prices,” he said.

“California gets to experiment,” said Meredith Hankins, a senior attorney at the Institute for Policy Integrity at the New York University School of Law. “They get to go first and explore how much can we reduce emissions. ... It’s a very well-established provision, and now red states are arguing that it’s unconstitutional.”

The Supreme Court has rejected an emergency request to block the Biden administration’s use of a key climate metric, effectively preserving federal agencies’ ability to account for the costs of heat-trapping emissions — at least for the time being. Max Sarinsky, a senior attorney with the Institute for Policy Integrity at New York University School of Law, said he was not surprised by the high court’s decision. The institute had filed a friend of the court brief in the appeals court, arguing that the administration’s metric was based on research and evidence. He added that the district court “badly misapplied bedrock constitutional principles about the role of federal courts,” and its injunction was swiftly lifted. Sarinsky said the ruling allows federal agencies to continue to apply available climate damage valuations to help write policy (Climatewire, May 26).

Rachel Rothschild, a legal fellow with the Institute for Policy Integrity, said fossil fuel companies are sure to sue if the state enacts the legislation. Rothschild’s legal research provided the basis for the proposed legislation, and she says one major legal question likely to arise in court is jurisdictional. In a memo to state legislators, Rothschild cites various cases in the hazardous waste context that she says suggest “that a state can exercise jurisdiction over a polluter simply because it discharged harmful substances into the forum state” and can therefore aid New York’s ability to assert jurisdiction over foreign or out of state companies.

The impact of removing the social cost of greenhouse gas figures from the Biden administration’s arsenal might not hobble future climate rules. Losing the social cost of carbon “would complicate things,” said Max Sarinsky, a senior attorney with the Institute for Policy Integrity at New York University Law School. “But it would not be fatal. Climate regulation would continue.”

“Those who think ESG investing is all surface and no substance should welcome the Commission’s effort to provide investors in ‘green’ or ‘socially responsible’ funds with clear and comparable information about where their dollars are going and why,” Jack Lienke, who directs regulatory policy at New York University’s Institute for Policy Integrity, said in a statement. “And those who think ESG investing is a reliable means of maximizing long-term returns,” he added, “should welcome this effort to expose greenwashing and increase investor confidence in legitimate ESG claims and products.”

The growing threat of power outages fueled by extreme weather calls for new approaches to grid oversight, the head of the Federal Energy Regulatory Commission said yesterday, adding that utilities and grid operators should “think differently.” Sarah Ladin, an attorney at the Institute for Policy Integrity at the New York University School of Law, said FERC should “deeply scrutinize” the emissions estimates provided by project applicants, even in cases where a new gas project would replace a higher-emitting coal power plant. In general, many coal plants across the United States are closing due to market changes, she added.

The agency last year also withdrew the Trump EPA’s other last-minute denials of petitions that sought a more expansive Clean Air Act to battle climate change. Environmental and public interest groups behind those petitions, however, remain in limbo. “We have not heard anything more on this since we received the withdrawal of the denial,” said Derek Sylvan, a spokesperson for the Institute for Policy Integrity, based at the New York University School of Law. The institute petitioned EPA to regulate greenhouse gas emissions under Section 115 of the Clean Air Act.