Recent Projects

Discretion is not deference. That statement may seem obvious to some. To many, however, the two terms are interchangeable. They are not. And the distinction is important, especially now that the Supreme Court has eliminated the deference doctrine associated with Chevron U.S.A., Inc. v. Natural Resources Defense Council. Stated succinctly, deference concerned ambiguous statutory terms or phrases (and implicit grants of authority), while discretion often concerns unambiguously broad statutory terms or phrases (and explicit grants of authority). So even with deference gone, agencies that can point to unambiguously broad terms or phrases in the statutes they administer will retain wide latitude to carry out their missions. 

This working paper summarizes the first empirical study of how major rules, as defined under the Congressional Review Act (CRA), fare in federal court. The study covers each of the 1,870 major rules issued from the CRA’s enactment in 1996 through the end of the Trump Administration. The roughly 24-year period covering four administrations (two from each party) is the longest continuous timespan of any empirical study of agency win rates.

In this paper, available on SSRN, we develop a model of a wholesale electricity market with energy and capacity market components to examine the economic relationship between costs and reliability. We investigate the importance of efficient resource accreditation—the amount by which to compensate resources for their contribution to system reliability. We show that "marginal effective load carrying capability," an accreditation method increasingly adopted by system operators, is theoretically optimal.

What's the function of oil and gas permitting agencies? Despite broad statutory grants to federal agencies, oil and gas companies increasingly argue that the role of those agencies is to promote development regardless of whether it is socially desirable. But this “Narrow Reinterpretation,” in addition to lacking textual support, is at odds with longstanding practice. What changed? Not the governing statutes, at least not in pertinent part. But the energy sector has: renewable sources have replaced coal as the primary competitors to oil and gas. 

National accounts—which measure a country’s aggregate economic activity, including Gross Domestic Product (GDP)—largely ignore natural capital and ecosystem services. This omission occurs because national accounts heavily rely on market transactions to identify and value economic activity, whereas ecosystems’ contributions occur most commonly outside markets. This leads governments, businesses, and decisionmakers to ignore or misidentify some sources and uses of their income and wealth, skewing their decisionmaking. Recognizing these shortcomings, many countries, including the United States, are increasingly moving towards Natural Capital Accounting (NCA), a system of measuring natural capital and ecosystem services in a way that allows for their integration with national accounts. In this report, we provide an overview of NCA for non-economists.

In December 2023, EPA finalized updated values for the social cost of greenhouse gases (SC-GHG), following public comment and expert peer review. The agency derived these estimates using the best available science and economics, and the estimates represent a significant step forward in our ability to properly value climate effects. The brief is intended to introduce policymakers and practitioners to the SC-GHG, break down EPA's updated values, and explain why they represent a powerful tool that can streamline decisionmaking and policy analysis.

In recent years, federal courts have increasingly assessed the legality of regulatory action by considering its antecedents, or lack thereof, in prior agency actions. Yet as this article explains, federal agencies have insufficiently adapted to this increased judicial focus on regulatory antecedents. While significant agency rulemakings typically include extensive dockets with many different types of analysis, they have generally provided limited analysis of regulatory antecedents. This article suggests that agencies more extensively catalog regulatory antecedents at all stages of the rulemaking process, from drafting to promulgation.

In May 2023, EPA proposed new limits for greenhouse gas (GHG) emissions from certain fossil-fuel-fired power plants under Section 111 of the Clean Air Act. Some critics have suggested that EPA’s new rule triggers the major questions doctrine. Under that doctrine, a court should look skeptically on the agency action in extraordinary cases involving unprecedented and transformative applications of agency authority. But the major questions doctrine is inapplicable to EPA’s use of CCS in its proposed regulations. Rather than propose a new approach that would transform its exercise of statutory authority, EPA has embraced one of its most traditional and well-established regulatory practices: setting emission limits based on pollution controls that cause a regulated source to operate more cleanly. This policy brief details why EPA’s latest proposal to limit GHG emissions from power plants fits neatly within the bounds of the legal authority left intact after West Virginia. It then explains how states and operators retain flexibility to use emission trading and averaging programs to implement EPA’s regulations.

In May 2023, the Environmental Protection Agency (EPA) proposed new limits for greenhouse gas (GHG) emissions from certain fossil-fuel-fired power plants under Section 111 of the Clean Air Act. Section 111 requires EPA to set limits reflecting the emission reductions achievable by applying what the agency determines to be the “best system of emission reduction” (BSER) that “has been adequately demonstrated,” and that meets certain other statutory factors. This policy brief summarizes the legal framework of Section 111 (including the legislative history and caselaw relevant to understanding its technology-forcing nature), walks through how courts have interpreted “adequately demonstrated,” reviews EPA’s past use of Section 111 to drive technology improvements, and explains why a potential Supreme Court decision that eliminates or curtails Chevron deference (a legal doctrine providing deference to reasonable agency interpretations of ambiguous statutory language) would not affect the longstanding interpretation of “adequately demonstrated.”

Our paper describes a multi-objective, multistage generation, storage and transmission expansion planning model to facilitate efficient and resilient large-scale adoption of offshore wind power. Recognizing regulatory emphasis and, in some cases, requirements to consider externalities, this model explicitly accounts for negative externalities: greenhouse gas emissions and local emission-induced air pollution. Our results indicate that accounting for negative externalities necessitates greater upfront investment in clean generation and storage (balanced by lower expected operational costs). Optimizing POIs could significantly reshape offshore topology or POIs, and lower total cost. Finally, accounting for extreme operational scenarios typically results in greater operational costs and sometimes may alter onshore line investment.