In the News

The case, West Virginia v. Environmental Protection Agency, is the product of a coordinated, multiyear strategy by Republican attorneys general, conservative legal activists and their funders, several with ties to the oil and coal industries, to use the judicial system to rewrite environmental law, weakening the executive branch’s ability to tackle global warming. But legal experts say that the Republican attorneys general and their allies have taken such strategies to a new level, in their funding and their tactics. “They’ve created out of whole cloth a new approach to litigating environmental regulations, and they’ve found sympathetic judges,” said Richard Revesz, a professor of environmental law at New York University.

The impacts of climate change are often described as small changes in temperature or massive emissions, which doesn’t always make sense to people, said Peter Howard, an economist at the Institute for Policy Integrity. “Putting it in dollar terms helps the public really understand what the magnitude of the climate costs are.” 

West Virginia could be decided as soon as next week. A broad ruling against EPA could dismantle the agency’s regulatory authority and has the potential to ripple across the rest of the federal government. “As the U.S. Solicitor General explained, there’s currently no regulation in place that puts costs on any petitioner,” said Dena Adler, a research scholar at the Institute for Policy Integrity at New York University School of Law, after the Feb. 28 argument in West Virginia. “The Clean Power Plan did not spring to life after the most recent decision in this case. Given the absence of any current regulation, it would make sense to dismiss the case as improvidently granted.”

The public health benefits of building decarbonization are extensive and relevant to all households. According to an April 2022 report by the Institute for Policy Integrity, lower-income households and people of color are especially vulnerable to gas-stove pollution, since these groups already experience worse air pollution, and are more likely to live in smaller homes with limited ventilation.

“​​The story of climate policy in the US, generally, is one of missed opportunities and unjustifiable delay,” said Jack Lienke, author of the book Struggling for Air: Power Plants and the “War on Coal.” Many other issues may have seemed more pressing, or simply better understood. As Lienke writes in Struggling for Air, “At a time when Americans were still dying somewhat regularly in acute, inversion-related pollution episodes, it is unsurprising that legislators were more concerned with the known harms of sulfur dioxide and carbon monoxide than the uncertain, seemingly distant threat of climate change.”

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).