In the News

The Supreme Court's five conservative justices — Clarence Thomas, Samuel Alito, Neil Gorsuch, Kavanaugh and Chief Justice John Roberts — have also indicated at times that they may be open to reviving the nondelegation doctrine in some way, noted Richard Revesz the director of the Institute for Policy Integrity at the New York University School of Law. That seldom-used legal theory holds that Congress cannot delegate its powers to administrative agencies. "I do worry a fair amount about what a new justice might do in connection with the nondelegation doctrine and the impact that might have not only on regulation in [energy and climate] but on regulation across a whole slew of federal regulatory programs," Revesz said.

Administrations usually win 70% of the cases brought against them, but Team Trump has won only about 16% of the 132 decided lawsuits. “Over and over and over the Trump agencies are doing things that are outside the bounds of their statutory authority,” said Bethany Davis Noll, litigation director of the Institute for Policy Integrity at the New York University School of Law. Even when the cases were heard by judges appointed by Republicans the Trump administration only won 35% of its cases, Noll found in data she is compiling for a forthcoming paper. They won about 8% of the cases heard by judges appointed by Democrats.

Almost all of Trump’s attempts at deregulation — some 100 rules that he’s tried to eliminate or weaken — are being challenged in court, and environmentalists are steadily winning. According to the Institute for Policy Integrity at New York University, the Trump administration has lost 69 of the 83 legal challenges it’s faced in its deregulatory blitz. 

President Trump has initiated the most aggressive environmental deregulation agenda in modern history, but as his first term drives to a close, many of his policies are being cut down by the courts — even by Republican-appointed jurists who the administration had hoped would be friendly. According to a database kept by New York University’s nonpartisan Institute for Policy Integrity, the Environmental Protection Agency has won only nine out of 47 cases in court under Mr. Trump, while the Interior Department has won four of 22. The Trump administration’s overall win rate hovers just under 16 percent, the group said, compared to win rates of about 70 percent for both the Obama and Bush administrations.

The administration has only succeeded in 18 of 107, or about 17%, of its regulation-related court cases, according to a tracker by New York University’s Institute for Policy Integrity. Historically, the average success rate among administrations is 70%, said Bethany Davis Noll, litigation director at the New York University’s Institute for Policy Integrity.

Administrations usually win 70% of the cases brought against them, but Team Trump has won only about 16% of the 132 decided lawsuits. These figures include 14 of 83 lawsuits about environment, energy and natural resources; seven of 53 lawsuits about deregulation; and 3 of 26 lawsuits about health. “Over and over and over the Trump agencies are doing things that are outside the bounds of their statutory authority,” said Bethany Davis Noll, the litigation director of the Institute for Policy Integrity at the New York University School of Law.

The Center for Biological Diversity is just one of the environmental organizations that have been using the courts to challenge the Trump rollbacks. Overwhelmingly, these suits have succeeded. Only 12 out of 81 lawsuits related to environment, energy, and natural resources deregulation were decided in the Trump administration’s favor as of August 31, according to the Institute of Policy Integrity at New York University School of Law.

Other items on FERC's agenda: a rehearing request regarding FERC's approval of the Mountain Valley Pipeline Southgate expansion permit; a rehearing request from Sierra Club on a Sabal Trail compression station permit; and a permit decision on a pipeline expansion that would feed the Sabine Pass LNG plant. That one includes a challenge from the Institute for Policy Integrity, which wants to know why the commission did not include downstream greenhouse gas impacts of the pipelines.

Peter Howard, economics director at New York University School of Law’s Institute for Policy Integrity: "Policymakers should not abandon longterm climate and air pollution goals, which produce benefits over multiple generations, every time the economy slows down in the short run. Instead, they should weigh the social benefits and costs. In doing so, they will frequently find that carbon-intensive industries, such as coal and oil-sand extraction, are net costly for society when considering the welfare of all Canadians."

A coalition of South Texas community groups and environmental organiztions has challenged U.S. federal regulators' decision last month to approve a scaled-down Rio Grande LNG facility. The suit filed in June has attracted interest from outside groups, with New York University's Institute for Policy Integrity submitting an amicus brief.