Newsletters

June 21, 2024

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  Which Rules Survive Court Challenges? – New Article and Data Resources

  As the dust settles following the Supreme Court decisions in Loper Bright and Relentless, many are wondering about the future of federal regulation. We have offered some initial analysis. Data on how courts have treated agency rules in the past can offer particularly valuable context, and our new study provides exactly that. Using a novel dataset of all 1,870 major rules (as defined by the Congressional Review Act) issued from 1996 through the end of the Trump Administration, we analyze whether a major rule issued today is as likely to be challenged and withstand the challenge as a rule issued 25 years ago. In addition to answering those overarching questions, we break down win rates by presidential administration and agency, as well as by party of the deciding judges’ appointing President. Along the way, we examine trends in forum shopping and the use of Chevron deference, among other variables. For a summary of our findings, check out our recent commentary piece or our new web resource highlighting the data from the study.

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  How to Measure the Economic Value of Nature

  In Economics 101, students are taught that GDP measures the value of all final goods and services produced in a country. But what about the value that forests produce when they clean the air? Or the value that wetlands provide when they protect people from flooding? These contributions to people’s wellbeing and the economy—which don’t appear in market transactions—often go totally unquantified and unconsidered. Natural Capital Accounting (NCA), a concept explained and explored in detail in our new report, is designed to rectify this omission. NCA expands national accounts, which provide the basis for calculating GDP, by quantifying the value of a country’s natural assets (i.e. natural capital) and the services they provide to people (i.e. ecosystem services), and adding them to the previously incomplete numbers. More than 90 countries have begun to use NCA, with Europe leading the way. But the U.S. has recently stepped up its efforts, as evidenced by the recent release of a national strategy for compiling natural capital accounts. As the trend towards using NCA continues, and valuable natural ecosystems come under greater threat, it will become increasingly important that decisionmakers know how to appropriately account for nature’s value. Our report offers a primer on these issues.

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  Another FERC Effort to Expand the Electric Grid

  Over the last month, FERC-followers have been rightly focused on the Commission’s new transmission planning rule, but FERC also recently issued another order that could provide crucial support for grid expansion. Unanimously approved by the Commission, Order 1977 outlines how FERC plans to implement its “backstop siting authority.” Using this power, FERC can permit the construction of vital transmission infrastructure when states will not or cannot do so, provided that the infrastructure is in the “public interest.” As part of making this public interest determination, the Commission requires applicants to estimate their project’s emissions impacts. In our comments on the proposed rule, we asked FERC to clarify that this requirement includes projects' impacts on power-system emissions (i.e. how grid-connected power plants would increase or decrease their emissions due to the new transmission capacity). In response, the Commission clarified that these power-sector emissions must be estimated when, based on the factual circumstances, they are reasonably foreseeable. Consistent with our comments’ legal analysis, FERC affirmed that it has a legal mandate to consider these emissions impacts when determining whether permitting a project serves the public interest. It also confirmed it will require applicants to submit these and other air quality impacts as part of their applications. Similarly, FERC agreed with our and others’ analyses that the Federal Power Act requires it to consider environmental justice impacts when exercising backstop siting authority.

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  New Briefs in Two Key Environmental Cases

  We recently filed amicus briefs in two key cases before the U.S. Court of Appeals for the D.C. Circuit. In one case, the American Gas Association argues that the Department of Energy’s (DOE) new energy standards for consumer water heaters and furnaces are not economically justified. Our amicus brief explains why that argument is unpersuasive. Specifically, we note that DOE is addressing well-documented market failures and using well-supported methods to appropriately value the rule’s benefits and costs, including those that result from consumers switching the fuels they use. A recent Inside EPA article highlighted our brief. In another case, the State of Utah and others are trying to stop EPA’s new Good Neighbor Rule. The rule is the latest in a long line of EPA regulations effectuating the requirement that upwind States eliminate emissions that “significantly contribute” to downwind States’ inability to meet certain ambient air quality standards. Our brief rebuts multiple arguments against the rule, explaining that addressing the serious and complex spillover effects caused by air pollution was a central justification for the Clean Air Act and EPA’s regulatory impact analysis demonstrates that the rule is economically justified.  

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  Energy Disruptions and Resilience – Webinar Recap

  Our recent webinar brought together experts to discuss the impacts of energy system failures, how to mitigate them, and how to increase the overall resilience of critical infrastructure systems. Dr. Duncan Callaway of UC Berkeley, Dr. Mikhail Chester of Arizona State University, and Dr. Erica Fischer of Oregon State University explained how their research can help improve high-level decisionmaking around resilience issues in an era of accelerating complexity and uncertainty. Leuwam Tesfai, the California Public Utility Commission’s Deputy Executive Director for Energy and Climate Policy, also discussed how California is working to enhance grid resilience while meeting the state’s ambitious clean energy targets. She emphasized that creating a clean, safe, affordable, and reliable grid will require new levels of coordination across state agencies. All the panelists highlighted the need for more research on several pressing issues: the potential for large-scale, multi-region climate disruptions; improved risk quantification and communication to inform resilience investment tradeoffs; and fundamental reforms to infrastructure governance to align with the challenges of the 21st century. For more in-depth insights, view the webinar recording and read our blog post on key takeaways from the event. This webinar series was part of a series supported by the Alfred P. Sloan Foundation.

• More from This Month

  • We submitted comments to FEMA on its proposed rule to modify the standard flood insurance policy under the national flood insurance program.
  • We submitted comments to EPA on its review of secondary national ambient air quality standards (NAAQS).
  • Our regulatory policy director’s law review article on the oil and gas industry’s retreat from the broad permitting authority it long embraced was published in the Harvard Environmental Law Review Online.