In the News

Trump’s agencies are now in court defending several major rollbacks, including weakening the Migratory Bird Treaty Act, the Endangered Species Act, the Clean Water Act, and the National Environmental Policy Act. The Biden administration could ask the courts to put those and other cases on hold while it rewrites regulations, says Bethany Davis Noll, litigation director at New York University’s Institute for Policy Integrity. “The big picture is that a lot of work on the environment is going to continue to happen at the agency level,” she says. “Their biggest priority would be rewriting these rules.”

Joe Biden could erase much of President Donald Trump’s four-year legacy of energy and climate deregulation with the stroke of his pen, according to regulatory experts, but replacing it with something new and durable may prove trickier. Further, many of Trump’s domestic energy deregulatory policies never took full effect due to court challenges. The Trump administration has lost 84% of its energy- and environment-related lawsuits, according to New York University Law School’s Institute for Policy Integrity.

The Trump administration has won only 36% of court challenges to agency decisions before GOP-appointed judges, according to a study by Bethany Davis Noll, a professor at the New York University School of Law. Presidents Ronald Reagan, Bill Clinton, George H.W. Bush and George W. Bush fared better before politically aligned judges in such cases, winning 68% to 84% of the time. Thomson Reuters Legal summarized the study, while Noll and Christine Pries summarized the findings in an article for the Hill. The study counts an appellate panel as Republican if a majority of the judges are appointed by GOP presidents.

Various non-governmental groups and analysts are seeking to influence climate and energy policy in the post-election period. A new paper, by the Institute for Policy Integrity (IPI) at New York University Law School, focuses on options to improve infrastructure development in an effort to stimulate the economy, boost social equity and reduce carbon emissions. The paper is not geared toward a specific administration, though it recommends changes to the National Environmental Policy Act (NEPA) unlikely to be embraced by a Trump administration. These include adding standardized methodologies and tools to evaluate climate impacts, and compressing permitting time for key categories of sustainable infrastructure, including by increasing staffing and resources focused on expedited permitting.

President Donald Trump famously promised to win so much that his supporters would be tired of it. But as a running tally of legal challenges to his administration’s actions shows, he has lost in court more than any other president. His overall win rate is currently 17 percent, while past administrations generally won around 70 percent of cases. And even a reelected Trump is at risk of continuing to lose dramatically in court.

Democrats prioritized climate in the "Moving Forward Act," the $1.5 trillion infrastructure package that passed the House in July. That legislation, H.R. 2, included a $100 billion investment in low-emission mass transit and a $75 billion investment in clean energy. "I think H.R. 2 was a good step forward. I would imagine that if Biden is elected, there will be an attempt to use that as a starting point but incorporate some new concerns from the Biden platforms," said Derek Sylvan, strategy director at the Institute for Policy Integrity at NYU School of Law and the author of a recent report on federal infrastructure policy. And if Democrats maintain their majority in the House and reclaim control of the Senate, the climate provisions would be an easier sell, Sylvan said.

President Donald Trump has won court cases challenging agency decisions by his administration 36% of the time when facing judges appointed by Republican presidents and panels of judges whose majority was made up of Republican appointees, according to a forthcoming analysis by NYU School of Law’s Institute for Policy Integrity. Previous studies show that four of his predecessors, when also up against politically-aligned judges, won cases 64% to 84% of the time.

Biden has already said that if he wins, he plans to roll back more than 100 Trump administration public health and environmental regulations. We asked Bethany Davis Noll, litigation director for the Institute for Policy Integrity at the New York University School of Law, to explain how Biden will execute these rollbacks if he takes the election.

One might assume that Trump’s changes to the immigration system can be easily undone — particularly since they were put in place unilaterally through executive actions (and refusals to do the work of government). And the administration has an overwhelming record of legal failure, according to a database of major Trump regulatory actions maintained by the Institute for Policy Integrity at New York University’s School of Law. In nearly every immigration case that has had some sort of resolution, a court either ruled against the agency or the relevant agency withdrew the action after being sued. Other regulatory actions would also likely be reversed by a new administration. But such reversals would happen slowly, if at all.

“If this ends up being a one-term administration, very little of the regulatory changes will stick,” said Richard Revesz, director of the Institute for Policy Integrity at New York University, which monitors lawsuits brought against all the administration’s departments. “The Trump administration has tried to do a lot, but it’s done it in an extraordinarily sloppy way.” According to the institute, courts with judges appointed by Democrats and Republicans have so far ruled against about 84 percent of the 90 energy and environmental regulations, guidance documents and other actions by the Trump administration.