In the News

The U.S. Department of Justice declined to say whether it will appeal Judge Cain's order to the Fifth Circuit, but even if the case ultimately ends in the social cost of carbon and other metrics being struck down, that doesn't mean the end of the Biden administration's forward motion on climate change-related regulations, said Max Sarinsky, a senior attorney at the Institute for Policy Integrity at NYU School of Law. To begin with, only the current social cost of greenhouse gas metrics are at issue in the litigation, Sarinsky said. "This doesn't prohibit agencies from using any evaluations of the social cost of greenhouse gases — it only prohibits them from using the Interagency Working Group's evaluations and some of the Interagency Working Group's methodologies," he said.

The Biden administration is preparing strict new limits on pollution from buses, delivery vans, tractor-trailers and other heavy trucks, the first time tailpipe standards have been tightened for the biggest polluters on the road since 2001. “This is a historic role that California has played since 1970, a role that was interrupted only during the Trump administration,” said Richard Revesz, a professor of environmental law at New York University. “This is a hugely important policy but it’s also a return to the traditional way of understanding the relationship between the federal government and California with regards to vehicle pollution. It’s a moment of return to normalcy.”

“I think the decision will get very, very close scrutiny on appeal,” argues Max Sarinsky, a senior attorney at the Institute for Policy Integrity (IPI) at New York University School of Law. “This decision suffers from obvious constitutional deficiencies.”

"This injunction is extraordinarily broad," Max Sarinsky, an attorney at the Institute for Policy Integrity at NYU Law School, told Axios. "I think it will receive very, very close scrutiny on appeal."

In lease sales in Wyoming and Utah, BLM applied the social cost of greenhouse gases while proposing to move ahead with substantial new oil and gas leasing. “I don't see how there's any injury from that,” said Max Sarinsky, a senior attorney at the Institute for Public Integrity at New York University School of Law. “And it also undercuts [red-state challengers'] whole theory that these numbers in and of themselves will necessarily cause substantial harm.”

Not fully accounting for carbon damages would skew any cost-benefit analysis of a proposed rule in favor of industry, said Max Sarinsky, a Senior Attorney at the Institute for Policy Integrity. He added that the social cost of carbon had been “instrumental” in allowing agencies to accurately judge how their rules affect the climate.

USPS's final environmental impact statement [for its plans to acquire new vehicles] “has some disappointing omissions, though the Postal Service was right to use the [SCC] in the first place," said Andrew Stawasz, a Legal Fellow at the Institute for Policy Integrity.

There are many instances in which agencies must rely on ambiguous allocations of statutory authority to resolve important policy questions. Conservatives would be able to use a major questions ruling to challenge agencies in such instances, particularly because a vague line between “major questions” and “minor questions” and between “ambiguous” and “unambiguous” might make it hard to understand the scope of the ruling. (New York University Law professor Richard Revesz’s brief focuses on the “illogical and unworkable new standards” that would come from applying the major questions doctrine to this case).

Better insulating homes and building without gas appliances will help, said Justin Gundlach, a senior attorney at NYU School of Law’s Institute for Policy Integrity. "If you need less [energy], it stands to reason that you will feel less of a ripple when the price changes."

Now that the Biden administration has had a chance to take a crack at it, the legal justification looks much sturdier, according to Richard Revesz, a professor at New York University School of Law and director of the Institute for Policy Integrity. "What EPA does is establish that the direct benefits are sufficient to justify the rule," Revesz said. "The direct benefits are large and very significant."