Recent Projects

The Federal Energy Regulatory Commission (FERC) recently approved the construction of a new natural gas pipeline that would run through New Jersey and Pennsylvania. The gas capacity this expensive pipeline would provide, most of which will serve New Jersey markets, is unnecessary to meet the demand of New Jersey customers: the New Jersey Board of Public Utilities commissioned a study that demonstrates as much. We submitted an amicus brief in support of petitioners challenging this pipeline. In our brief, we explain that, in approving pipeline applications, FERC has abdicated its statutory responsibility to examine whether a pipeline is truly needed. Instead of determining whether a pipeline would serve the public interest, FERC defers to the assertions of profit-motivated pipeline developers and their customers. FERC's practice of approving needless pipelines is particularly concerning in light of how it regulates the development of electric transmission infrastructure, a related regulatory process. We argue that FERC should have placed greater weight on the rigorous economic study conducted by an expert state agency charged with ensuring safe and adequate gas supply for its residents.

The Willow Master Development Plan is a proposed oil and gas development project in the National Petroleum Reserve in Alaska led by ConocoPhillips. In 2020, the Bureau of Land Management (BLM) approved the project for development. In 2021, the U.S. District Court for the District of Alaska vacated BLM’s approval of the Willow Project, but BLM prepared a supplemental environmental impact statement (SEIS) and subsequently re-approved the Project with fairly minor modifications. In March 2023, Plaintiffs challenged BLM's approval. We filed an amicus brief in the U.S. District Court for the District of Alaska in support of Plaintiffs to provide reasons supporting vacatur if the Court grants summary judgment to Plaintiffs.

We filed an amicus brief in a Ninth Circuit loan settlement case in support of neither party to address the proper application of the major questions doctrine. Our brief takes no position on whether the major questions doctrine ultimately applies to the case, nor does it take a position on how the Ninth Circuit should ultimately decide the case. It does explain that, although the Supreme Court’s major questions precedents often reference the economic significance of an agency’s action, none of the Supreme Court’s precedents, including West Virginia, turns on this factor.

In May 2022, the National Highway Traffic Safety Administration (NHTSA) finalized a rule to increase its corporate average fuel economy (CAFE) standards for passenger cars and light trucks for model years 2024–2026. A group of fuel and petrochemical manufacturers and states challenged the standards in the U.S. Court of Appeals for the D.C. Circuit, arguing primarily that the Energy Policy and Conservation Act bars NHTSA from including electric vehicles in the analytical baseline for the new standards. Our amicus brief explains that longstanding administrative guidance and case law direct agencies to develop baselines that reflect their best assessment of the real world absent any new agency action. In the context of this rulemaking, that guidance and case law required NHTSA to project how many and what kinds of vehicles—including electric (and plug-in hybrid electric) vehicles—would be built and sold if it did not issue new CAFE standards, which is what NHTSA did here. Our amicus brief also explains that NHTSA has consistently prepared baselines for prior CAFE standards in this manner.

In December 2021, the Environmental Protection Agency finalized a regulation to strengthen its greenhouse gas emission standards for light-duty vehicles. Although regulated automakers support EPA’s approach, a group of states and oil-and-gas companies have challenged the standards in the U.S. Court of Appeals for the D.C. Circuit, claiming that the standards misapply economic principles and violate the major questions doctrine. In our amicus brief, we explain that EPA’s regulation is consistent with sound economics and established practice.

Earlier this year, a group of environmental organizations successfully challenged an offshore oil-and-gas lease sale held by the Bureau Ocean Energy Management on the basis that BOEM inadequately assessed the impacts on climate change from the combustion of the fossil fuels that the lease sale would facilitate. In its appeal to the D.C. Circuit, the American Petroleum Institute countered that any analytical limitations were harmless because the Outer Continental Shelf Lands Act bars BOEM from considering climate-change impacts when administering leasing policy. Our amicus brief rebuts this argument and defends BOEM’s authority to consider downstream climate impacts in its administration of the offshore leasing program. Our brief explains that the consideration of downstream emissions is consistent with OCSLA’s text, legislative history, regulatory history, and caselaw.

Last July, PJM Interconnection (the electricity grid operator for 13 states and the District of Columbia) submitted revisions to its Minimum Offer Price Rule (MOPR) for its capacity market to the Federal Energy Regulatory Commission (FERC) for approval. The new rule (the “Focused MOPR”) would remove an artificial barrier to market entry for resources that receive such externality payments under state climate and clean energy policies. Policy Integrity filed an amicus brief in support of FERC and PJM’s Focused MOPR explaining why the rule is welfare-enhancing and would not threaten reliability.

In this amicus brief, we explain how the Interagency Working Group based its climate-damage valuations on voluminous and expert science, and that its approach followed regulatory guidance and precedent. In particular, the brief supports the Working Group's selection of discount rates and geographic scope, explaining how those choices followed expert consensus and were consistent with agency treatment of other regulatory impacts.

In 2018, New Jersey established a Zero-Emissions Credits (ZECs) program, which provides subsidies to the state’s nuclear power plants for reducing carbon emissions in the energy sector. Our amicus brief explains how the Social Cost of Carbon is the best available estimate for valuing harms caused by carbon dioxide emissions. We also argue that the ZECs program should account for the benefits of avoided emissions both inside and outside of New Jersey.

Certain coal companies and states have asked the Supreme Court to narrow the scope of EPA’s authority by prohibiting the agency's use of flexible compliance mechanisms—like intersource emissions trading and production shifting—in regulating greenhouse gas emissions from the power sector. The challengers rely in part on the major questions doctrine, a little-used canon of interpretation that petitioners claim bars EPA from issuing costly and controversial rules.

In this amicus brief, we explain that petitioners’ application of the major questions doctrine would expand the canon beyond either recognition or workability, stretching a doctrine meant to apply only in rare cases to cover many different regulations advanced by administrations of both parties. We further explain that, contrary to petitioners’ assertions as part of their major questions analysis, EPA has frequently relied on flexible compliance mechanisms under numerous Clean Air Act provisions. Finally, our brief argues that Section 111(d) of the Clean Air Act is an integral statutory provision for regulating air pollution and not an afterthought as petitioners contend.

The Supreme Court will hear the case, West Virginia v. Environmental Protection Agency, later this term. The case seeks to revive the Affordable Clean Energy Rule, a deregulatory action promulgated under the Trump administration that was vacated last year by the U.S. Court of Appeals for the D.C. Circuit.