In the News

Though the line between forcing technology and relying on what’s adequately demonstrated can be thin, Dena Adler of New York University’s Institute of Policy Integrity says Congress always meant for its seminal air law to solely protect public health, “not merely memorialize the status quo... And the track record for earlier power plant rules shows that industry has repeatedly been able to meet regulations much faster and much more cheaply than anticipated,” Adler said.

A study by the non-partisan thinktank the Institute for Policy Integrity, comparing how successive administrations fared when they introduced major new rules, found that the Trump administration was challenged legally at a far higher rate than any previous administration going back to Bill Clinton in the 1990s. When cases got to court, Trump’s record was even more abysmal. He lost 57% of the time. That was dramatically worse than Barack Obama’s average across his two terms – 31%. “The process of getting new rules out was flawed in many cases, as was the supporting analysis – so when they showed up in court they were getting dinged a lot,” said Don Goodson, the institute’s deputy director.

Under Trump’s first EPA administrator, Scott Pruitt, the Agency saw several legal defeats, which meant a delay in repealing many Obama administration rules. This resulted in several Trump replacement rules not being finalized until the end of his first term in office. Approximately 80 percent of Trump administration actions were legally defeated, according to The Institute for Policy Integrity at New York University School of Law.

“There’s a reason that most administrators have a substantial background in high executive branch or state-level executive branch positions, or both,” said Jason Schwartz, a former senior adviser in the White House regulatory office under President Joe Biden. “It’s because EPA is a complex agency to run...” “If you’re rolling back a regulation, you need to explain why,” said Schwartz, who now serves as legal director of the Institute for Policy Integrity at the New York University School of Law. “You need to explain why you’re changing position from what the agency just said on its review of all the scientific and economic evidence a couple years before.”

One probable path forward at least for some cases: the Trump Administration will freeze certain rules and then ask courts to halt litigation while they commence a lengthy notice-and-comment rulemaking process, Institute for Policy Integrity senior attorney Dena Adler said in an email. But the timing of Biden’s briefs could factor into whether certain cases continue on schedule: courts don’t guarantee abeyance requests. The power plants rule, according to Adler, is one that could raise questions for courts considering a potential freeze request. Not only is it fully briefed, but arguments are set well before inauguration on Dec. 6.

The Trump administration’s record in lower federal courts was even worse: NYU law school’s Institute for Policy Integrity found it won just 22 percent of cases involving challenges to regulatory action. It’s possible the Supreme Court’s decision eliminating the Chevron doctrine and giving judges more power to second-guess federal agencies could be used against Trump efforts to dismantle existing regulations or impose new ones.

Deregulation is the top priority for Republican voters on Wall Street, although Trump’s record in the field is mixed. He left office in 2021 claiming in his first term to have “slashed more job-killing regulations than any administration has ever done before”. However, the Institute for Policy Integrity, a non-partisan think tank at the New York University School of Law, estimated that just 22 per cent of the first Trump administration’s regulatory or deregulatory actions survived legal challenges unscathed.

During Trump’s first term, more than 246 agency regulations, guidance documents and memoranda were challenged in federal courts. The administration won 54 of the cases, a 22% success rate, according to data from the Institute for Policy Integrity at the NYU School of Law.

Trump's first-term policies also encountered a lot of judicial pushback. When it analyzed the outcomes of federal cases involving Trump agency actions from 2017 through the end of his administration, the New York University School of Law's Institute for Policy Integrity found that the government was unsuccessful 78 percent of the time.

A new administration must make a robust case for why it’s pulling back, issue a proposal, take public comment and respond to those comments. For complex rulemakings, the process typically takes two or three years. And opponents can sue. Almost 80 percent of the first Trump administration's regulatory actions were defeated in court, the Institute for Policy Integrity at New York University School of Law estimated.