In the News

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.

Jason Schwartz, legal director at New York University School of Law's Institute for Policy Integrity, told Law360 that agency officials carefully pay attention to the calendar when they plan rulemaking in the early days of a presidential administration. Schwartz served as a senior adviser at OIRA under Biden. "For a while now, agencies will have been thinking about their priorities and been coordinating with OIRA and with the policy councils in the White House to really sequence things so that the highest-priority rules made it to the finish line with time to spare," he said. Agencies also consider litigation targeting rules they issue, Schwartz said.

In a recent post for the Yale Journal on Regulation’s Notice and Comment blog, the regulatory policy director at the Institute for Policy Integrity, Max Sarinsky, argued that administrative agencies should aim to preemptively rebut major questions doctrine challenges by citing previous agency actions. Sarinsky identified new Environmental Protection Agency vehicle pollution standards as an example.

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.

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. 

A Feb. 28 webinar -- hosted by the Center for Progressive Reform, Coalition for Sensible Safeguards, and Institute for Policy Integrity -- will discuss the White House’s new cost-benefit review guidance known as Circular A-4, how it can be used in comments and final rules, as well as how EPA’s updated social cost of carbon (SCC) valuations can affect pending regulations.

The Coalition for Sensible Safeguards, Center for Progressive Reform, and Institute for Policy Integrity are holding a Feb. 28 webinar exploring how the White House Office of Information and Regulatory Affairs’ (OIRA) new Circular A-4 guidance can be used effectively in comments and included in final regulations.

If Chevron is undone, says Don Goodson, a senior attorney at the Institute for Policy Integrity (IPI) at New York University, that is “a big concern,” though it is unclear “how exactly that would play out because it would be such a big change, and so many cases upheld agency actions resting on Chevron.”

According to New York University’s Institute for Policy Integrity, the Trump administration won only 23 percent of legal challenges to its agency actions (which were almost entirely deregulatory), compared to a success rate of about 70 percent defending agency actions in previous administrations. 

Environmentalists are warning that if the Supreme Court ends the long-standing Chevron doctrine, as is widely expected after Jan. 17 arguments, it will result in significant policy uncertainty as courts conduct heightened scrutiny of EPA and other agency rules while Congress is unable to provide detailed legislation that such an approach requires... Donald Goodson of the Institute for Policy Integrity at New York University tells Inside EPA that the high court should have dismissed Loper and just heard Relentless, which is “the obviously better vehicle” because all nine justices can participate.