In the News

The decadeslong fight over drilling in the Arctic National Wildlife Refuge is nowhere near over, despite the Interior Department taking a big step Monday toward allowing development. "[P]laintiffs will almost certainly seek a preliminary injunction in court to stop any sale from going forward. And a new administration could decline to defend the ROD in court," Jayni Foley Hein tells Axios in an email. "Second, it seems very likely that a Biden administration could seek to reopen the [National Environmental Policy Act] analysis, and it could also decline to issue permits to drill based on flaws in the ROD and underlying analysis," says Hein, who is with NYU's Institute for Policy Integrity.

Environmental and academic groups are urging the U.S. Court of Appeals for the 10th Circuit to uphold a lower court’s stay of the Trump administration’s waters of the United States (WOTUS) rule. The Institute for Policy Integrity uses its Aug. 11 amicus brief to take aim at the rule's economic analysis. "Time after time, the economic analysis relies on irrational and ill-informed assumptions, violates regulatory guidance and precedent, and makes claims about water connectivity that are inconsistent with science -- all with the effect of making the Rule's extensive harms seem minor in relation to its alleged cost savings," Policy Integrity says.

“Existing law has evolved over a century of fossil fuel use and the development of existing infrastructure,” said Justin Gundlach, an attorney at the Institute for Policy Integrity, a nonpartisan think tank. “There is a lot of work to be done identifying where New York's Climate Leadership and Community Protection Act and existing law need to either be amended or reinterpreted.”

In some cases, Trump administration efforts are hitting delays and possibly brick walls. The Administrative Procedure Act requires that a new rule must have a “reasoned explanation” for it to be sound – or withstand a lawsuit, says Bethany Davis Noll of the Institute for Policy Integrity at New York University School of Law. If some Trump moves leave a lasting mark, in other cases the president’s actions could face reversals – notably in cases where his policies lack strong economic or scientific footing. “I think most presidents want some kind of legacy,” Davis Noll says, and in her view “that’s what he hasn’t managed to accomplish.”

The D.C. Circuit is expected to hear oral arguments in challenges to major replacement rules sometime in the fall. Decisions in all three high-profile legal battles could come after Biden potentially takes the oath of office. "These are complicated cases and it typically takes the D.C. Circuit at least six months to decide them, so they're probably pending when the new administration comes into office," Richard Revesz, director of New York University Law School's Institute for Policy Integrity, said. A new Biden administration would likely ask the D.C. Circuit to put the suits on hold on the grounds that the new president wants to review and modify the rules, Revesz said, noting that Trump did the same thing with the Clean Power Plan shortly after being sworn into office in 2017.

The U.S. Supreme Court made a significant move toward a “unitary executive” vision of Article II in Seila Law LLC v. CFPB. In this 5-4 decision, the Court relied on misleading arguments and revisionist history to strike down the statutory provision granting for-cause removal protection to the director of the Consumer Financial Protection Bureau.

To date, challenges to Trump’s deregulatory actions have been very successful. The Institute for Policy Integrity at the New York University School of Law found that the Trump administration has lost 87% of challenges to its regulations, guidance documents, and agency memoranda.

EDF asked the court to strike down the Trump EPA’s July 2019 rule repealing the Clean Power Plan, and to order the agency to  fulfill its statutory obligation to establish meaningful protections against climate- and health-harming pollution from existing power plants. A diverse array of experts and organizations have also filed amicus briefs forcefully opposing the rollback of the Clean Power Plan. That group includes five of the nation’s most prominent health and medical associations, the Institute for Policy Integrity at NYU Law School, seven leading experts in administrative law, one of the authors of the Clean Air Act, organizations dedicated to the conservation of national parks, a group of leading climate scientists and economists, and the Union of Concerned Scientists.

What are we to make of this seeming sea change in corporate social responsibility? Critics are correct in pointing out that these measures fall far short of what is needed to avoid catastrophic levels of warming. But to observers of corporate governance, this level of climate activism is unprecedented, almost shocking—and without an analytical vocabulary to make sense of it. To understand this recent rise in institutional investor activism, one has to look at the shifting composition of the major players in capital markets over the past decade.

Trump’s regulatory legacy will be greatly shaped in coming months by court rulings in lawsuits challenging some of his most potentially consequential rollbacks. “He needs to win reelection in order to defend those rules in court, and even then I think it’s going to be a longshot to win some of those,” said Bethany Davis Noll, litigation director of New York University’s Institute for Policy Integrity.