In the News

Amid the national effort to reduce emissions, state laws play a key role, according to the United States Climate Alliance, a bipartisan coalition of governors working to turn back climate change. The alliance released a resource Monday, “The Social Cost of Greenhouse Gases: A Guide for State Officials,” to help leaders better understand the social cost of greenhouse gas emissions. It was put together by the Institute for Policy Integrity at New York University School of Law and is freely available to public officials.

The Inflation Reduction Act marks the most significant federal action on climate change yet, with about $370 billion of the $433 billion package teed up for green investments across the country. The IRA includes a slew of tax credits, grants, rebates and financing opportunities to encourage individuals, businesses and local governments to transition to greener energy and greater efficiency. “States that are prepared, that are well positioned, are going to be able to take advantage of this bill better than others,” said Justin Gundlach, a senior attorney at NYU School of Law’s Institute for Policy Integrity. “New York is very, very well positioned to do that.”

Transmission issues are the most common challenge, if not the most daunting, experts say. As such, states with steep clean energy goals need to make sure they're not just building fast, but building the right kind of transmission infrastructure, Justin Gundlach of the Institute for Policy Integrity told Law360. On top of that, developers need to make sure they're displacing legacy generation from coal or natural gas, he added. "It's great building renewables, but are they building the right kind of transmission in the right places that de-bottleneck access so that when they run, they displace emitting resources?" Gundlach said. "It's not just a matter of building a transmission line to a renewable facility — it's also a matter of reconfiguring your system so you are assured … you are able to deliver the power they generate wherever there is demand, and by doing so, you make them available to compete against a likely expensive, higher-emitting legacy system."

"Drip pricing is really not good for anyone — it creates a race to the bottom, where all ticket sellers feel like they have to advertise deceptively low fees or they'll lose out to those who do," said Max Sarinsky, a senior attorney at the Institute for Policy Integrity at New York University. "It's not the kind of problem that can solve itself, because it requires all actors to behave well." Last year, the institute asked the Federal Trade Commission, which has the authority to crack down on misleading and deceptive business practices, to ban drip pricing. Its petition garnered support from a number of consumer rights groups and event ticket sellers.

In October, the Supreme Court will start swinging a conservative legal sledge hammer called the “major questions doctrine,” at every government sector that traffics in regulation. “The major questions doctrine didn't exist until fairly recently, but in the last year or so, the Supreme Court has made it a regular part of its anti-regulatory arsenal,” Richard Revesz of the Institute for Policy Integrity at NYU Law School told the Washington Post last week. “As a result, I am sure that enterprising attorneys general for red states will use it to challenge climate regulations, environmental regulations and all kinds of other regulations.”

In the summer 2022 issue of Regulation, Adler writes a review of Reviving Rationality: Saving Cost-Benefit Analysis for the Sake of the Environment and Our Health by Michael A. Livermore and Richard L. Revesz. Reviving Rationality is something of a sequel to their prior book on cost-benefit analysis, Retaking Rationality: How Cost-Benefit Analysis Can Better Protect the Environment and Our Health. In the first book (which he also reviewed), Livermore and Revesz made the case for cost-benefit analysis as a tool of progressive government. In Reviving Rationality, they note how the Obama Administration (largely) followed their advice and critique the Trump Administration for abandoning principled cost-benefit analysis in regulatory policy.

One potential consequence, that each panelist feared could happen, would be more rulings based on the Major Questions doctrine. This would be a big change for the Court. On this point, Dena Adler from NYU stated, “Until recently, this interpretive framework was little-used, and it remains poorly defined.”

Dr. Burçin Ünel, the Energy Policy Director at the Institute for Policy Integrity, joined three other panelists to discuss why the current pricing system doesn’t work and explore ways regulators and utilities can reimagine electricity tariff structures to better price DERs and encourage more efficient electricity use.

At the heart of the decision in West Virginia v. EPA lies the “major questions” doctrine: the legal argument that federal agencies may not rule on matters of “great economic and political significance” without direct approval from Congress. Dena Adler, research scholar at New York University’s Institute for Policy Integrity, called the standard for the major questions doctrine “mushy.” “Opponents of regulation will continue to attempt to argue that other regulatory policies now qualify as major questions, and push for that exception to swallow the rule,” Adler said.

Late last month, the Supreme Court ruled that the U.S. Environmental Protection Agency’s Clean Power Plan, a 2015 regulation limiting carbon dioxide emissions from power plants, exceeded the agency’s authority under the Clean Air Act. Where does this decision leave climate policy at EPA? Down but not out. The agency still has meaningful options for decarbonizing the power sector, but it won’t be able to implement them quickly — or without a fight.