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Joint Comments to the California Public Utilities Commission on Safety, Reliability, and Resilience Rules for Electrical Distribution Systems
Public Comments / July 8, 2024 / DownloadInstitute for Policy Integrity submitted joint comments with Columbia Law School's Sabin Center for Climate Change Law on the California Public Utilities Commission's Order Instituting Rulemaking to Update Rules for the Safety, Reliability, and Resiliency of Electrical Distribution Systems. The joint comments emphasize the importance of a comprehensive approach to climate resilience planning across utility sectors.
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Discretion Is Not (Chevron) Deference
Published in the Harvard Journal on Legislation
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.
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Amicus Brief on EPA Good Neighbor Rule
Court Filings / June 24, 2024 / DownloadThe State of Utah and others filed a lawsuit over EPA’s new Good Neighbor Rule in the U.S. Court of Appeals for the D.C. Circuit. 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. We filed an amicus brief rebuting multiple arguments against the rule. Our brief explains 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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Major Rules in the Courts
An Empirical Study of Challenges to Federal Agencies’ Major Rules
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.
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Cost-Effective Capacity Markets
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.
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Amicus Brief in Case Challenging the Economic Justifications for Energy Conservation Standards
Court Filings / June 17, 2024 / DownloadIn 2023, the Department of Energy (DOE) issued new energy conservation standards for consumer water heaters and consumer furnaces. In April 2024, a natural gas trade association challenged the standards in the U.S. Court of Appeals for the D.C. Circuit, arguing that the standards are not economically justified. In response, Policy Integrity filed an amicus brief supporting DOE’s economic analyses and explaining how Petitioners’ and certain amici’s arguments overlook DOE’s sound assumptions and the relevant statutory framework.
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Comments to EPA on Review of Secondary NAAQS
Public Comments / June 14, 2024 / DownloadIn April 2024, EPA proposed retaining the secondary national ambient air quality standards (NAAQS) for nitrogen oxides (NOx) and particulate matter (PM) and setting a new annual average standard for sulfur oxides (SOx). Policy Integrity submitted comments arguing that although the Proposed Rule begins to assess the various adverse welfare effects of SOx, NOx, and PM emissions and depositions that different populations may face, EPA should assess, consider, and present more information regarding both distributional impacts and future risks.
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Expert Declaration in Case Requesting a Stay of EPA’s Methane Rule for the Oil and Gas Sector
Court Filings / June 11, 2024 / DownloadIn March 2024, a set of states and industry groups asked the U.S. Court of Appeals for the District of Columbia Circuit to stay the implementation of EPA’s rule to limit methane emissions from the oil and gas sector. Our Economics Director, Peter Howard, authored an expert declaration defending the agency's development and use of new values for the social cost of methane in the rule.
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Policy Integrity Comments Reflected in FERC’s Order 1977 on Backstop Siting Authority for Transmission Facilities
On May 13, 2024, FERC issued Order 1977 to implement its authority to site transmission facilities that have been rejected (or not acted upon) by states. In our comments, we asked FERC to clarify that the proposed requirement that applicants estimate reasonably foreseeable emissions for their proposed transmission facilities includes the projects' impacts on power-system emissions. In response, the Commission clarified that these power-sector emissions must be estimated where they are reasonably foreseeable. And, consistent with our comments' legal analysis, FERC confirmed its authority to require applicants to submit these and other air quality impacts under the Federal Power Act's backstop siting provision. FERC also agreed with our and others’ analysis that it has the statutory authority under the Federal Power Act and to also consider environmental justice impacts when exercising backstop siting authority. -
The Narrow Reinterpretation: The Oil and Gas Industry’s Retreat from the Broad Permitting Authority It Long Embraced
Published in the Harvard Environmental Law Review Online
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.
