In the News

This podcast discusses the upcoming climate change case, West Virginia v. EPA, with Lisa Heinzerling and Kirti Datla. The discussion of Policy Integrity's Supreme Court amicus brief begins at 41:17. 

On February 28, the Supreme Court will hear West Virginia v. Environmental Protection Agency. An important amicus brief filed by the NYU law professor and former dean Richard L. Revesz, one of the nation’s foremost environmental law scholars, makes a compelling argument that the factors urged by regulatory opponents for triggering the major questions doctrine are unworkable and fail to distinguish the CPP from many other regulations. He shows how the EPA, under administrations of both parties, has relied in the past on approaches similar to those that the agency employed in the CPP. The CPP is not so novel or unanticipated in its use of regulatory strategies that the major questions doctrine should be called into play.

“This [ruling] is a big deal,” says Richard Revesz. But, there are “all kinds of scenarios” for how things play out. Revesz acknowledges the potential for significant delays to result from even minor required changes in cost- benefit analysis. “It would take some time. It would be a project.” And he suggests another option for the agency, at least while the SCC litigation is pending, could be to rely on “unquantified” GHG benefits.” EPA, for example, could say a rule has significant GHG reductions that the agency believes justify the costs, while acknowledging it is unable to rely on the SCC values. “What the agency probably cannot do is to depend on quantified benefits,” Revesz says.

Max Sarinsky, a senior attorney at the Institute for Policy Integrity at New York University School of Law, called Cain’s ruling “legally incoherent,” arguing that it’s put federal agencies in a Catch-22 as they attempt to assess the cost of climate change in major decisions. “There’s a fair amount of legal precedent for these agencies to consider climate science,” Sarinsky said. “And this injunction prevents them from using these climate estimates.”

It’s unusual for the supreme court to hear a case where there is no active rule to challenge, according to Richard Revesz, a leading expert in environmental law at the New York University School of Law. “It surprised me they took this case, this would be an excellent candidate for dismissal,” he said. “In normal times, when the court wasn’t so skeptical of regulation, this case would’ve been dismissed. It would have a pernicious consequences if it were allowed because it could severely restrict agencies’ ability to regulate and these power stations are such big emitters.”

Tellurian Inc.’s Driftwood LNG facility and Equitrans Midstream Corp.’s contentious Mountain Valley Pipeline are among dozens of proposed natural gas projects set to face new scrutiny after U.S. regulators tightened their criteria for approvals. Near-term decisions could be made in at least eight projects, said Sarah Ladin, an attorney with the Institute for Policy Integrity at New York University School of Law.

“A lot of the agencies are sort of in a ‘damned if we do, damned if we don't' situation, where they’re often under legal requirements to take certain actions ... but this injunction is prohibiting them from sufficiently analyzing the climate impacts of those actions,” said Max Sarinsky, senior attorney at the Institute for Policy Integrity at the New York University School of Law. 

Richard Revesz, who directs the Institute for Policy Integrity at the New York University School of Law, said the Louisiana judge’s decision was “one of the most aggressive and ill-founded administrative law opinions” that he has read in recent years. Revesz called it “unprecedented” for a judge to intervene so early in the rulemaking process to tell the government it cannot study a potential risk. “I don’t know how a court could tell a president that the executive branch cannot estimate the harm of a pollutant,” he said. “It’s like saying, ‘I’m sorry, the executive branch cannot study whether something is a carcinogen.’”

The greenhouse gas emissions “trigger” provides new clarity for how FERC processes and regulates gas projects, said Sarah Ladin, an attorney at the Institute for Policy Integrity at the New York University School of Law. She noted that FERC has been completing supplemental environmental impact statements for some gas projects over the last year, despite having already issued environmental assessments for the same proposals. “We won’t have to see the delays we saw, where there’s an EA first and [then] a supplemental EIS,” Ladin said.

Louisiana's recent win in litigation that barred President Joe Biden's administration from using a contested calculation for determining the "social cost of carbon" could upend federal oil and gas lease sales planned in the coming months. Interior officials are "sort of in a 'damned if we do, damned if we don't' scenario," New York-based think tank Institute for Policy Integrity senior attorney Max Sarinsky said. This injunction "prohibits them from using the best available metric to assess climate impacts of their lease sales. If they do not include that assessment, that of itself could be problematic."