In the News

The Regulatory Review has invited leading scholars and analysts from across the country to assess the Court’s regulatory decisions from its recently concluded term. New York University School of Law's Richard Revesz will discuss Seila Law LLC v. Consumer Financial Protection Bureau, and how, in striking down the for-cause provision governing the removal of the Consumer Financial Protection Bureau’s single director, the Court implausibly distinguished this case from settled precedent, keeping an important building block of the administrative state in place for now. His essay will be published on August 5.

The Trump administration’s relentless push to gut dozens of environmental and public health safeguards worsened the COVID-19 pandemic in the United States, a new report from New York University School of Law found. The lengthy analysis, which NYU’s Institute for Policy Integrity published Tuesday, comes as President Donald Trump and his team act as if the coronavirus threat is waning — when the U.S. outbreak stands out as one of the worst in the world — and as they work to finalize a frenzy of environmental rollbacks ahead of November’s election.

As of 2017, the Trump administration’s new discount rate for SCC is between 3% to 7%—up from 2.5% to 5% during the Obama administration. When setting funding priorities and regulatory policy for government agencies, the Office of Management and Budget has been instructed to use the maximum rate of 7%. That leaves the US without many peers, says Peter Howard, an economics director at New York University School of Law’s think tank for government decision-making, Policy Integrity. “Few economists think that [discount rate] is appropriate,” said Howard. “Seven percent is an extreme outlier.”

New York University School of Law’s Institute for Policy Integrity says the Trump administration has succeeded on only 11 of 99 legal challenges to its regulatory changes, with more than half its losses on environmental policy. Bethany Davis Noll, who manages the scorecard, said success rates in previous administrations hovered around 70%.

Had FERC taken up NERA’s arguments, it would not only have upended the legal basis for net metering programs but would also have severely hampered ongoing efforts by numerous states to develop programs that value [distributed energy resources] with greater accuracy,” the Institute for Policy Integrity at New York University School of Law said

Jayni Hein of the Institute for Policy Integrity at New York University says the final rule -- published in the July 16 Federal Register after President Donald Trump personally unveiled it a day prior -- makes it seem like NEPA is “all about efficiently approving projects. There is a lot of new language that goes to efficiency and time limits and page limits, and the new regulation erases a lot of the discussion of the need for a careful analysis of environmental effects.”

Critics say Mr. Trump is overstating the impact of his deregulations, in part because the administration almost always loses court challenges to its actions. More than 88% of the administration’s deregulatory efforts through this week were blocked in court or withdrawn after a lawsuit, according to the Institute for Policy Integrity, a nonpartisan think tank at the New York University School of Law.

When Congress creates a new independent agency, they give it a mix of features designed to insulate its decision-makers from different types of political oversight. In 2013, legal scholars Kirti Datla and Richard Revesz revealed that there is no single feature that all independent agencies possess, not even the removal protections at issue in Seila Law. They argue that independence should be viewed on a continuum rather than as a “constitutional force field” that can withstand all oversight.

"There have long been calls to streamline the NEPA process and specifically shorten the timeline for completing that process," said Jayni Foley Hein, natural resources director of the Institute for Policy Integrity at the New York University School of Law. "But the scope of these regulatory revisions far exceeds anything in recent memory." She said the Trump administration NEPA rule-making could be open to challenge because it goes beyond the scope of the law. "Agencies would be wise to follow the letter of the statute."

Energy companies’ decision to cancel the Atlantic Coast pipeline has dealt an under-the-radar setback to the environmental movement, prolonging a legal campaign to force federal regulators to take a closer look at pipelines’ climate impacts. A panel of D.C. Circuit judges last year panned FERC’s climate review process as “decidedly less than dogged.” But the court hasn’t yet given a definitive answer on whether the commission’s narrow interpretation of the 2017 ruling passes muster. In the meantime, “we are seeing agencies continue to rely on these really problematic arguments without really fully weighing the climate impacts of projects,” said Jason Schwartz, legal director for New York University’s Institute for Policy Integrity, which has advocated for broader reviews.