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Richard Revesz, director of New York University School of Law's Institute for Policy Integrity, said the Trump administration devised "an unsupportable legal theory" to justify the repeal of the Clean Power Plan.

The decision Tuesday caps the administration’s poor record fighting for its deregulatory attempts in court. According to the Institute for Policy Integrity at the New York University School of Law, the administration has lost more than 80 percent of its legal attempts to undo or force agency regulations in its favor. “The EPA constructed an unsupportable legal theory to justify the Clean Power Plan,” said Richard Revesz, director of the institute.

"For four years, the Trump administration has propagated the outright lie that the Clean Power Plan relied on regulatory techniques never used before, and the EPA constructed an unsupportable legal theory to justify its repeal," said Richard Revesz, director of the Institute for Policy Integrity at New York University's School of Law.

"It’s fitting that, on the Trump administration’s last full day in office, the D.C. Circuit forcefully struck down the signature item of its environmental agenda, which has brought enormous harm to the health of the American people, to the environment, and to the competitiveness of our economy," said Ricky Revesz, director of the NYU School of Law's Institute for Policy Integrity, which opposed the ACE rule.

The federal auto regulator said this week it would delay an increase in fines imposed on manufacturers that fail to meet emissions standards designed to curb global warming, even after the Trump administration has lost two lawsuits over the issue. Richard Revesz, a law professor at New York University, said the agency’s action was “directly inconsistent” with a ruling last year by a federal appeals court in New York. “In an administration that has taken many outrageous actions to compromise the health of the American people and the environment, this one stands out as an example of rampant lawlessness,” said Revesz, director of the Institute for Policy Integrity, which was involved in the litigation.

Eight days before President Donald Trump leaves office, the EPA published a rule on 13 January that sets 3% of total gross US greenhouse gas (GHG) emissions as the significant threshold at which the agency can regulate releases of these pollutants. Below that level, the EPA said no endangerment of public health would ensue. "The final rule violates the APA because it isn't a logical outgrowth of EPA's 2018 proposal and the public didn't get a meaningful opportunity to comment on the 3% threshold for significance," Jack Lienke, regulatory policy director at the Institute for Policy Integrity and an adjunct professor at NYU School of Law, said.

In a surprise move yesterday, the EPA posted a final rule that does nothing to change Obama-era carbon regulations on new power plants. Instead it doubles down on an issue that was raised only in a footnote in the December 2018 proposal: whether EPA should create a new metric for which industrial sectors contribute to climate change enough to trigger regulation. Environmental lawyers predicted that the Biden EPA would have little difficulty dispensing with it. "I think there's very little practical effect," said Jack Lienke, regulatory policy director at the Institute for Policy Integrity at New York University School of Law. "It's a banana peel, and the Biden administration is very unlikely to slip on it, I trust."

EPA Administrator Andrew Wheeler has said flatly that the science transparnecy rule is a minor “housekeeping” matter, not eligible for the CRA, but legal experts disagree. “The idea that you could take one of the most important regulations ever done in environmental law, one that could conceivably lead to tens of thousands of additional premature deaths every year, and call it a ‘housekeeping’ measure—it’s preposterous,” said Richard Revesz. 

Under the 1996 Congressional Review Act, Congress can quickly overturn a rule through a fast-track vote of disapproval and a simple majority in the House and the Senate. “It’s the quickest way for rules to get off the books,” said Richard Revesz, a law professor at New York University and a regulatory expert. “They can use it to clear the underbrush.”

Outgoing EPA Administrator Andrew Wheeler delivered a parting gift for his successor in the form of a new regulation: Increasing Consistency and Transparency in Considering Benefits and Costs in the Clean Air Act Rulemaking Process. This Trojan Horse rule appears innocuous at first glance, but further examination reveals a deeper mischief. Understanding that mischief requires context, well-provided in a 2019 article by Professor Revesz and Kimberly Castle published in the Minnesota Law Review.