In the News

In the nearly two years since the Supreme Court upended administrative law with its formal introduction of the MQD in West Virginia, federal agencies, scholars, and advocates have been coming up with ways to shore up new regulations against potentially-heightened scrutiny. Often these recommendations come in the form of particular analyses that an agency could include in a regulatory preamble that rebuts claims that a regulation is novel, transformative, economically significant, or any of the Court’s other supposed markers of “majorness.” For example, alongside the Institute for Policy Integrity, our organization urged the Environmental Protection Agency (EPA) to include a detailed accounting of “regulatory antecedents” in its final clean car rule to help rebut claims that it was a “novel” or “unheralded” agency action; as Max Sarinsky recently detailed, the EPA thoroughly did so in its final regulation.

"At FERC’s EJ Roundtable one year ago, we called for the Commission to publish comprehensive guidance on environmental justice. Such guidance would aid both FERC and permit applicants, and increase the legal durability of the Commission’s decisions. It would also make good on commitments from FERC and the Biden Administration to center environmental justice in policy decisionmaking... One year later, however, the Commission has not taken substantial steps towards the goal of integrating environmental justice into its processes and decision making. We continue to see projects that are not in the public interest approved, leaving behind vulnerable communities.” - Al Huang, Director of Environmental Justice, Institute for Policy Integrity at NYU School of Law.

The American Public Health Association, Smart Surfaces Coalition, Institute for Policy Integrity, and others can support a broader social cost benefit to determine what performance levels to require in procurement standards.

In a forthcoming article in the Georgetown Environmental Law Review, Richard L. Revesz, the AnBryce Professor of Law at New York University Law School, and Max Sarinsky, regulatory policy director at the Institute for Policy Integrity, propose that federal agencies preemptively address challenges under the major questions doctrine by drawing comparisons to prior agency actions.

“EPA’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,” argues Max Sarinsky, the regulatory policy director at New York University’s Institute for Policy Integrity (IPI), in a March 25 blog post on the Yale Journal on Regulation.

“EPA’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,” argues Max Sarinsky, the regulatory policy director at New York University’s Institute for Policy Integrity (IPI), in a March 25 blog post on the Yale Journal on Regulation. ... “Far from being transformative or extraordinary, the SEC’s . . . rule is a run-of-the-mill use of the SEC’s authority with ample precedent,” argues IPI legal fellow Bridget Pals, in a July 2022 Medium article about the then-proposed version of the measure.

New York University’s Institute for Policy Integrity hosts an April 4 event about federal regulation of voluntary carbon markets.

A March 26 amicus brief from New York University’s Institute for Policy Integrity (IPI) further stresses language from West Virginia that for a rule to trigger major questions, it must be “extraordinary.” “True, economic and political significance may be necessary conditions for triggering the major questions doctrine. But they have never been sufficient,” IPI writes, adding that an action must also be “extraordinary” in the context of historical actions by the agency.

Earlier this week, Max Sarinsky published an excellent piece about how agencies could get ahead of major questions doctrine (MQD) challenges to new rules... In the same spirit as Sarinsky’s blog post, we articulate another way to rebut MQD challenges to new agency actions. 

In a forthcoming law review article, Richard Revesz and I contend that agencies should preemptively rebut challenges under the major questions doctrine by drawing parallels to past agency actions. A recent federal regulation offers a template for this analysis. In its pollution standards for new vehicles issued last week, the Environmental Protection Agency extensively responded to claims that the rule triggers the major questions doctrine. EPA’s analysis is comprehensive and well-researched.