In the News

The quality of lawyering matters. For proof of this, you need look no further than the experience of one Donald Trump. Presidents normally win about 70 percent of their regulatory-law cases, The Washington Post has reported. But the Trump administration lost 78 percent of its cases, according to data from the Institute for Policy Integrity at the NYU School of Law.

President Joe Biden is nominating Richard Revesz of New York University (NYU) law school to serve as the administrator of the White House Office of Information & Regulatory Affairs (OIRA), a key office that conducts interagency reviews of EPA and other federal rulemakings before they are released. Revesz, who founded NYU’s Institute for Policy Integrity (IPI), has long been considered a top nominee but could not be reached for comment.

If courts can simply wipe away regulations at their discretion, it will have profound effects on how environmental agencies behave. According to the Institute for Policy Integrity at the New York University School of Law, judicial intervention led to significant setbacks to President Trump’s agenda, with the administration winning a mere 6 percent of cases against it.

Federal agencies often fail to justify the analytical time frames they use in their cost-benefit analyses, even when their chosen time frame clearly truncates a policy’s costs and benefits. Lance Bowman summarizes his recent report's recommendations for how the Office of Management and Budget (OMB) can address this problem through standardized guidance to agencies.

The Biden administration on Thursday will move to restore authority to states and tribes to veto gas pipelines, coal terminals and other energy projects if they would pollute local rivers and streams, reversing a Trump-era rule that had curtailed that power. Richard L. Revesz, a professor of environmental law at New York University, said he did not believe the actions by the Biden administration would affect prices at the pump, since the Trump administration’s limits would remain in place until the Biden rule is finalized, most likely next year. “Keeping the Trump rule in place is not going to keep gas prices low, and removing the Trump rule is not going to raise gas prices,” he said.

The Supreme Court has rejected an emergency request to block the Biden administration’s use of a key climate metric, effectively preserving federal agencies’ ability to account for the costs of heat-trapping emissions — at least for the time being. Max Sarinsky, a senior attorney with the Institute for Policy Integrity at New York University School of Law, said he was not surprised by the high court’s decision. The institute had filed a friend of the court brief in the appeals court, arguing that the administration’s metric was based on research and evidence. He added that the district court “badly misapplied bedrock constitutional principles about the role of federal courts,” and its injunction was swiftly lifted. Sarinsky said the ruling allows federal agencies to continue to apply available climate damage valuations to help write policy (Climatewire, May 26).

The growing threat of power outages fueled by extreme weather calls for new approaches to grid oversight, the head of the Federal Energy Regulatory Commission said yesterday, adding that utilities and grid operators should “think differently.” Sarah Ladin, an attorney at the Institute for Policy Integrity at the New York University School of Law, said FERC should “deeply scrutinize” the emissions estimates provided by project applicants, even in cases where a new gas project would replace a higher-emitting coal power plant. In general, many coal plants across the United States are closing due to market changes, she added.

The agency last year also withdrew the Trump EPA’s other last-minute denials of petitions that sought a more expansive Clean Air Act to battle climate change. Environmental and public interest groups behind those petitions, however, remain in limbo. “We have not heard anything more on this since we received the withdrawal of the denial,” said Derek Sylvan, a spokesperson for the Institute for Policy Integrity, based at the New York University School of Law. The institute petitioned EPA to regulate greenhouse gas emissions under Section 115 of the Clean Air Act.

FERC on Thursday proposed changing transmission planning and cost allocation processes in the first in what may be a series of initiatives to help build out the grid in response to electrification and the shift to renewable generation. Sarah Ladin, senior attorney at the Institute for Policy Integrity, said the proposal was “a modest but important step toward more efficient planning that can facilitate decarbonization.”

Max Sarinsky, a senior attorney at the New York University School of Law’s Institute for Policy Integrity, praises the changes CEQ made in the rule, noting they restore “several key NEPA requirements in place for over 40 years starting in 1978, in the form they were in.” It also removes “provisions that were added in 2020 that not only would have weakened environmental review but also were in violation of the statute . . . and how it was interpreted by the courts.” Sarinsky expects facial litigation over the phase 1 rule but notes challengers may face standing and ripeness hurdles as environmental groups did in seeking to challenge the 2020 rule.