In the News

Two clean energy companies have signed deals with the Empire State that could provide New York City with as much as a third of its electric needs each year from solar, wind and hydroelectric sources. But some predecessors have encountered road blocks in their quest to build out the massive infrastructure necessary to deliver the renewable energies to major load centers. Justin Gundlach, a senior attorney at the Institute for Policy Integrity at New York University, told Law360 on Wednesday that New York may not encounter that level of difficulty. He noted that the state already underwent a lengthy process before the Champlain Hudson Power Express — a proposed high-voltage direct current submarine line linking Montreal to New York City — began construction earlier this year. 

A top White House official says the Biden administration is planning to review under the National Environmental Policy Act (NEPA) various federal programs as a way to help speed later review of related low-carbon projects, an effort aimed at easing the challenge officials face as they seek to expedite such projects while also ensuring rigorous reviews. The White House Council on Environmental Quality (CEQ) is looking at “ways that programmatic analysis can be used more frequently and effectively by federal agencies,” Jayni Foley Hein, CEQ’s senior director for NEPA, said Oct. 19.

Was there another choice for DOI? Yes. The Louisiana decision “doesn’t force the administration to move forward with any particular lease sale,” Max Sarinsky of the New York University School of Law told The Guardian, though he added that if the sale were postponed, “I’m almost certain they would be sued by oil and gas interests.”

Just four days after landmark climate talks in Scotland in which Joe Biden vowed the US will “lead by example” in tackling dangerous global heating, the president’s own administration is providing a jarring contradiction – the largest ever sale of oil and gas drilling leases in the Gulf of Mexico. But legal experts say the court decision doesn’t, in itself, prevent the administration from stopping or delaying a scheduled lease sale, or from scaling it back. “The Louisiana opinion doesn’t force the administration to move forward with any particular lease sale – the Department of Interior still has discretion over that,” said Max Sarinsky, a senior attorney at the New York University School of Law. “If they were to postpone, I’m almost certain they would be sued by oil and gas interests, but that’s another matter.”

Without a doubt, all environmental rules will be challenged in court and former President Trump dramatically increased the number of conservatives in courts around the country. “From what I’ve observed, [the Biden administration is] being careful,” noted Ricky Revesz, a professor at New York University. “The question isn’t if they get sued. It is what is the probability of winning after litigation.”

Some legal and regulatory experts are skeptical that EPA’s methane rules — once they are finalized — could be the best path for the red states to reinvigorate their challenge to the Biden administration’s emissions metric. "I don’t think EPA would have much to worry about on the social cost of greenhouse gases front," said Richard Revesz, a law professor and director of New York University’s Institute for Policy Integrity. But he noted that any EPA rule of "any consequence" is going to be challenged in court.

Critics of PJM’s minimum price argued that it increased costs to consumers by imposing a barrier for renewable energy. Wind power has been able to bid well below other sources of electricity in competitive markets. “[The] indiscriminate treatment of all state policies as inefficient and uneconomic was both legally inappropriate and economically unsound,” said Sarah Ladin, an energy attorney at the Institute for Policy Integrity at New York University School of Law.

The bipartisan infrastructure bill clarifies FERC’s authority by giving the commission the ability to overturn state objections, transmission analysts said. “This clarifies the scope of preemptive authority available to FERC,” said Justin Gundlach, a senior attorney at New York University School of Law’s Institute for Policy Integrity. “In my corner of the world it is a meaningful policy change.”

"There has been a vague recognition for a long time that big transmission lines are hard to develop and get built," said Justin Gundlach, a senior attorney at the Institute for Policy Integrity at New York University School of Law who focuses on state energy and climate policy. "I think recognition is dawning that not only is this a bottleneck, this is a bottleneck for which our solutions aren't entirely clear." State electricity planners may also have to weigh siting risks of major transmission projects more heavily when comparing them against potential alternatives, Gundlach said.

Adding to the uncertainty is the US Supreme Court's recent decision to hear a sweeping challenge to EPA's authority to regulate greenhouse gases from stationary sources, although legal experts expect the court will focus on novel aspects of a since-abandoned 2016 rule that created a cap-and-trade-like system for CO2 from power plants. "That issue is not present in the methane rule," New York University School of Law professor Richard Revesz said.