In the News

The Clean Air Act requires that a best system of emissions reduction must be “adequately demonstrated.” Courts have interpreted this phrase to include options that are forward-looking and “technology-forcing”—meaning that the standards may not be achievable today, but information available now shows they will be achievable in the future.

The Institute for Policy Integrity hosts an April 29 event on electrification in buildings and communities. Speakers include academics, as well as DOE science official Henry McKoy.

Unlike former President Barack Obama’s Clean Power Plan, Biden’s regulation drills down on carbon emissions at the power plant level, which legal experts say may save it from a similar fate before the Supreme Court. “EPA’s new rule sticks to its plain vanilla, long-standing approach to reduce emissions through systems that help a source operate more cleanly,” said Dena Adler with the New York University School of Law.

Industry lawyers last fall raised concerns about EPA’s reliance on those D.C. Circuit cases -- including arguing that they do not apply to existing sources. However, New York University’s Institute for Policy Integrity in a recent issue brief argues federal courts have repeatedly affirmed that technology does not have to be in widespread use to be “adequately demonstrated,” and that standards may be forward looking.

"At bottom, the Clean Power Plan essentially adopted a cap-and-trade scheme, or set of state cap-and-trade schemes, for carbon," Roberts wrote. "Congress, however, has consistently rejected proposals to amend the Clean Air Act to create such a program." The Biden rule, however, takes an entirely different approach, said Dena Adler, a senior attorney at the Institute for Policy Integrity at the New York University School of Law. “EPA’s new rule sticks to its plain vanilla, long-standing approach to reduce emissions through systems that help a source operate more cleanly,” she said.

EPA’s passenger vehicle rule’s “thorough analysis also offers a critical roadmap for Department of Justice litigators who will soon brief this issue. Other agencies should study EPA’s approach and follow suit,” argued Max Sarinsky, the regulatory policy director at New York University’s Institute for Policy Integrity, in a March 25 blog post.

In a recent post for the Yale Journal on Regulation’s Notice and Comment blog, the regulatory policy director at the Institute for Policy Integrity, Max Sarinsky, argued that administrative agencies should aim to preemptively rebut major questions doctrine challenges by citing previous agency actions. Sarinsky identified new Environmental Protection Agency vehicle pollution standards as an example.

Also, on April 18, New York University’s Institute for Policy Integrity hosts a webinar about the role of economics in regulatory advocacy. The discussion will cover ways to engage in the regulatory process including the White House’s National Science and Technology Council’s Subcommittee on Frontiers of Benefit-Cost Analysis.

The defense of the Federal Acquisition Regulatory (FAR) Council’s pending rule comes as another analyst recently argued that agencies should use EPA’s recently finalized vehicle emissions rule as a model for how to counter such major questions attacks, including by citing statutory mandates for the rule and drawing analogies with past agency practice. “Other agencies should study EPA’s approach and follow suit,” argued Max Sarinsky, the regulatory policy director at New York University’s Institute for Policy Integrity (IPI), last month.

The court’s March 29, 2024, decision in Sierra Club v. FERC held that “FERC enjoys broad discretion” when it considers requests by pipeline companies to extend their timeline to put a project into service. However, the D.C. Circuit has previously offered course corrections to FERC in pipeline cases, and FERC still faces legal vulnerability with its current approach. Al Huang, a panelist at the 2023 Roundtable, recently called on FERC to issue “comprehensive guidance … to aid both FERC and permit applicants, and increase the legal durability of the Commission’s decisions.”