In the News

The agencies are not expected to meet this week’s deadline, and questions are swirling about the scope of a cars rule that could play a central role in cutting emissions from the nation’s biggest source of CO2. “Is the proposal going to reinstate the Obama standards, is it going to embody the agreement California reached with auto companies, which was less stringent, or will it be somewhere in between?” said Richard Revesz, a professor at the New York University School of Law.

While FERC’s new climate reviews are useful and a step in the right direction, failing to determine the significance of a project’s emissions could open the door to more lawsuits, said Max Sarinsky, a senior attorney at the Institute for Policy Integrity at NYU School of Law. “The bigger question is, what do you do now that you know what these emissions are? How is that going to affect your decisionmaking process?” Sarinsky said. “So far, FERC hasn’t shown that it will.”

Legal arguments that curbed several of the Trump administration’s most far-reaching executive actions could be used to slow President Joe Biden’s most ambitious climate and environment plans. The Trump administration had a 23% win rate in court challenges to its agency actions, according to data from the nonprofit Institute for Policy Integrity. That number is a stark contrast to the average 70% win rate of previous administrations, said Bethany Davis Noll, executive director of the State Energy & Environmental Impact Center and an affiliated scholar at the Institute of Policy Integrity.

In Biden’s first two weeks in office, he took 16 executive actions directly reversing one or more of former president Donald Trump’s policies. According to the Institute for Policy Integrity at New York University School of Law, of the nearly 260 deregulatory and other actions of Trump’s administration that were challenged in court, three-quarters were either struck down or withdrawn by the agency in question after it was sued.

The Institute for Policy Integrity, a regulatory think tank based at New York University, says in July 6 comments that OMB should “detail sustainable methodologies and procedures that agencies can implement,” and identifies four principles to guide such action.

Legal experts say they expect these kinds of filings will happen more regularly in coming months. “There will be lots of them,” says Ricky Revesz, director of New York University’s Institute for Policy Integrity (IPI). “It’s not an unusual pattern. The same thing happened in the beginning of the Trump administration. Parties that were already intervening on the side of the Obama administration took the role of defending the Obama regulations that were now being attacked by the Trump administration.”

Justin Gundlach explained that the New York Public Service Commission is in a tough spot—coordinating the decline of the gas system is deeply complicated, and the state is still in the midst of a process to determine what, exactly, that decline should look like. 

Advocates of the newly formed Initiative on Climate Risk and Resilience Law (ICRRL) are advocating the Securities and Exchange Commission (SEC) bolster climate change protections with the finance industry. The ICRRL is a joint initiative that includes the Columbia Law School’s Sabin Center for Climate Change Law, the Environmental Defense Fund, the Institute for Policy Integrity at New York University School of Law, and the Vanderbilt Law School.

The Biden administration intends to revive federal environmental protections for millions of streams, marshes and other bodies of water across the country. By starting early to revise the policy, the Biden administration stands a greater chance of defending it against the legal challenges that are expected to come, said Richard Revesz, a professor of environmental law at New York University. “That makes it much more likely it will stick,” Mr. Revesz said.

Local governments in the U.S. have instead tried to use common-law nuisance claims to force companies to pay the costs of adapting to the effects of climate change. Most of those cases are pending. Should a case end up at the Supreme Court, the conservative-leaning panel could be skeptical of allowing cities to get involved in regulating global matters, said Rachel Rothschild, a legal fellow at the Institute for Policy Integrity at New York University School of Law.