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Karen Bennett Speaks with Law360 About Circuit Court Rulings on Federal Environmental Policies

Washington, D.C. (October 28, 2022) – Washington D.C. Partner Karen C. Bennett was recently quoted by Law360 in an article titled "Carbon Cost Loss Won't Stop Red States' Climate Policy Fight," which discusses recent rulings by the Eighth and Fifth Circuits that pushed back on states challenging the Biden Administration’s attempts to regulate greenhouse gas emissions. 

Recently, the Eighth Circuit, in a ruling similar to one from the Fifth Circuit in March, highlighted major policy implications of the carbon cost standard in the federal government's policy, but said that the states' legal challenge was premature. States are not required to follow the interim guidance on carbon cost laid out by federal agencies, and it has not been incorporated into an actual rule or been the concrete basis for denied permits. 

Ms. Bennett emphasized that these recent executive actions can have a major impact before they become subject to judicial review. "A lot of damage can be done. An entire industry can be put out of business," she told Law360. "You can significantly alter the economy of a state through something that can't be legally challenged until it's too late." 

Ms. Bennett added that even when finally promulgated, it could be difficult to show concrete harm based on the social cost of carbon metric, because the government is likely to argue that the social cost of carbon is simply one of many factors considered. "It leaves that opening to be able to dodge the bullet on pinning the actual impact of a specific methodology for quantifying greenhouse gas impacts," she said. 

Ms. Bennett is co-chair of Lewis Brisbois' Sustainability and Environmental, Social, and Governance (ESG) Practice, its Environment, Land, & Natural Resources Law Practice, its Administrative Law & Regulatory Practice, and its Government Relations Group. She works with clients to resolve regulatory issues, focusing primarily on permitting, compliance, litigation, and legislative policy. A frequent commentator on environmental law issues, she recently authored an Expert Analysis piece for Law360 on EPA's latest guidance incorporating environmental justice into permitting programs.

You may read the full Law360 article here (subscription may be required). 

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