In the News

New York regulators are, for the first time, denying Clean Air Act operating permits for two proposed new natural gas-fired power plants over climate change concerns after regulators determined that the projects would violate a new state law to cut greenhouse gas emissions. According to Justin Gundlach, a senior attorney at the Institute for Policy Integrity at New York University, this is not the first time the state has cited the CLCPA to deny a permit, having rejected water and pipeline permits already, but it is the first denial of air permits, in this case Title V operating permits under the Clean Air Act.

EPA has the authority under the Clean Air Act to set emissions standards for new fossil fuel-fired heating appliances used in millions of residential and commercial buildings that cumulatively generate “substantial quantities” of greenhouse gases and smog-forming pollution, according to a new analysis from the Institute for Policy Integrity.

“Fossil fuel-powered appliances ubiquitous in residential and commercial buildings collectively emit almost three times more smog-forming nitrogen oxides than the nation’s gas-fired power plants, and almost as much planet-warming carbon dioxide,” IPI says in an Oct. 25 statement announcing a new report that makes the cases for such regulation.

Across the nation, severe weather fueled by climate change is pushing aging electrical systems past their limits, often with deadly results. “There is no question that climatic changes are happening that directly affect the operation of the power grid,” said Justin Gundlach, a senior attorney at the Institute for Policy Integrity, a think tank at New York University Law School. “What you still haven’t seen … is a [state] commission saying: 'Isn’t climate the through line in all of this? Let’s examine it in an open-ended way. Let’s figure out where the information takes us and make some decisions.’ ”

Despite the leadership issues and skeleton staffing, “OIRA is not slowing the process down,” said Ricky Revesz, a New York University law school professor who directs the Institute for Policy Integrity. “[Rules] seem to be coming out at a reasonable clip.”

In a report issued late last month, the Institute for Policy Integrity (IPI) at New York University urged agencies to prioritize equity consideration across federal regulations. The Sept. 30 report, “Making Regulations Fair: How Cost-Benefit Analysis Can Promote Equity and Advance [EJ],” recommends rigorous guidance on assessing and weighing the distributional impacts of regulations. “This insufficient analysis is an enormous obstacle in the effort to make policies, environmental and otherwise, fair for all communities,” IPI says in a release on the report.

Policy Integrity claimed that existing ties between neighboring systems operated by MISO and the Southwest Power Pool demonstrated the value of interregional transmission during a deadly mid-February cold weather event. Those ties allowed customers in the MISO and SPP footprints to avoid widespread blackouts, while the siloed grid operated by the Electric Reliability Council Of Texas Inc. flirted with complete collapse.

EPA is urging Michigan regulators to consider asking an asphalt company to move its planned facility to a different location rather than building it in an already-overburdened community, a first-time request in an air permit review that underscores agency efforts to address civil rights and other environmental justice (EJ) concerns. Max Sarinsky of the Institute for Policy Integrity at New York University praises EPA for “wisely recommend[ing] consideration of alternatives that would avoid causing disparate impacts on environmental justice communities.”

Prof. Daniel Farber weighed in with a post titled "Regulatory Analysis in Unsettled Times," writing that "CBA can most effectively be defended as a guardrail against bad decisions rather than a monorail to ideal ones." Prof. Amy Sinden's piece contends that CBA is often not the most effective tool in situations with data gaps and unquantified benefits, while Prof. Caroline Cecot writes, "Critics attack CBA simultaneously for being easy to manipulate, anti/pro-regulatory, not transparent, & persistently net costly for some groups—but their preferred alternatives all perform worse by these same measures."

Richard Revesz, a New York University Law School professor who was discussed as a possible Biden pick for EPA administrator, said one option would be for EPA to roll out several rules as an “umbrella proceeding." “Typically EPA has done [rulemakings] sort of one at a time and the government has done them one at a time, but one could sort of think of this as a whole-of-government package so that the power sector could be regulated in an intelligent way that reduces the cost of the regulation and increases the environmental benefits,” Revesz said.