In the News

Jason Schwartz, the legal director of the Institute for Policy Integrity, said the Trump administration’s regulatory rollbacks often ignored congressional statutes or inflated the costs of regulations on industry. Mr. Trump’s allies have presumably learned from those missteps, experts said.

The number of restrictions in the Code of Federal Regulations, a proxy for the intensity of regulation in America, was basically unchanged under Mr Trump. What is more, his administration was stymied by the courts. It was unsuccessful in nearly 80% of litigation over its use of federal agencies, according to the Institute for Policy Integrity, a research group.

The DOE’s recent pause on LNG export licenses is a prudent step to gather the type of record that courts would need to see after the Chevron decision, said Jennifer Danis, federal energy policy director for the Institute for Policy Integrity at the New York University School of Law. The ruling in Loper Bright offers terms that can grant agencies flexibility when phrases such as “reasonable” or “appropriate” are in the statute, Danis said. The Natural Gas Act standard for DOE to determine whether LNG exports are consistent with the “public interest” is “such a standard that evidences Congressional intent to leave this to agency discretion,” she said.

I have noted that according to decades’ worth of studies compiled by Bethany Davis Noll, litigation director at the Institute for Policy Integrity, federal agencies have historically prevailed in about 70 percent of the legal challenges to their regulatory actions. But Noll’s study reviewing 278 Trump-era agency actions (48 involving immigration) found that federal agencies prevailed only 23 percent of the time. As to appeals, Noll reported that “[o]f the appeals that the government took, agencies lost on appeal 38% of the time, … won reversal … in 12%, ... [and] another 48% … were pending.”

Altogether, [the Supreme Court's] actions to transfer authority from agencies to the judiciary could curtail a wide range of financial, environmental, workplace and consumer protections. “It’s just part of a continuing trend with the federal judiciary and the Supreme Court in particular, exercising more and more power … at the expense, potentially, of the other branches,” said Don Goodson, deputy director of the Institute for Policy Integrity at New York University School of Law. 

“Congress doesn’t have the time or expertise to fill in the details for thousands of regulations, and it’s hard to anticipate the twists and turns of the future and exactly what [lawmakers] need to spell out specifically,” says Dena Adler, a senior attorney at New York University’s Institute for Policy Integrity. Agencies use their expertise to turn broad-brush statutes into nitty-gritty policies, and the courts intervene only in extreme circumstances.

As we all await the next administrative law earthquake from the Supreme Court, it may be worth taking stock of just how much the ground has already shifted. In our new article, Major Rules in the Courts: An Empirical Study of Challenges to Federal Agencies’ Major Rules, we provide this analysis. Using a novel dataset of all 1,870 major rules (as defined by the Congressional Review Act) issued from 1996 through the end of the Trump Administration, we analyze whether a major rule issued today is as likely to be challenged and withstand the challenge as a rule issued over 20 years ago. In addition to answering those overarching questions, we break down win rates by presidential administration and agency, as well as by party of the deciding judges’ appointing President. Along the way, we examine trends in forum shopping and the use of Chevron deference, among other variables.

Agencies have limited capacity to conduct rigorous cost-benefit analysis — they often cite resource limitations as a reason that they cannot monetize certain benefits. But they also have at least one strategy for mitigating this challenge: They can look to their past valuation practices for models and build on their existing methodologies. Where benefits like increased dignity and public health are at stake, every bit of valuation counts.

Meanwhile, the Institute for Policy Integrity (IPI) at New York University School of Law in June 14 comments urges EPA to further examine the potential costs and benefits in the rule with specific regard to its environmental justice benefits, its interaction with climate risks, and its effect on future pollution patterns. “EPA should set secondary NAAQS that prevent anticipated adverse and disproportionate public welfare impacts on environmental justice communities, including potential impacts to drinking water quality, subsistence fishing, and recreational opportunities,” IPI says, calling EPA’s EJ analysis “abbreviated.”

New York University’s Institute for Policy Integrity (IPI) is backing the Energy Department’s (DOE) economic justification for tougher energy efficiency standards for gas-fired appliances, arguing the rules help address “market failures” in which consumers sometimes do not choose a more-efficient appliance even if it would save them costs over time. “DOE’s modeling approach reflects the complexities of accounting for consumer choices in markets where the energy-efficiency gap exists,” IPI writes in a June 17 amicus brief in American Gas Association (AGA), et al., v. DOE, et al before the U.S. Court of Appeals for the District of Columbia Circuit.