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Despite its low success rate, the administration is actually winning — at least some of the time. That’s because the administration has learned to use delaying tactics to undermine and even repeal federal regulations it doesn’t like, even when judges rule against it in court.

Despite the Trump administration's low success rate, the administration is actually winning — at least some of the time. That’s because the administration has learned to use delaying tactics to undermine and even repeal federal regulations it doesn’t like, even when judges rule against it in court.

Revesz said many of the court losses can be tied to a conundrum for the administration: If they complete scientific and thorough analysis to justify what they want to do, that work will show why their goal is harmful to the public. But if they complete haphazard analysis, judges will see through it. “So they’re caught between a rock and a hard place,” Revesz told CQ. “I think in some cases there is not good analysis that they could do, so they resort to bad analysis.”

Every additional ton of the greenhouse gas emissions from burning fossil fuels to generate electricity contributes to climate change. This carbon pollution has many negative consequences, both to the physical world and also to global social and economic systems. But utilities don’t always tally the costs of these consequences. Because dealing with climate change is astronomically expensive, we believe that this should change.

“What this decision says is, in evaluating the environmental consequences of the lease, an agency has to look not just at the consequences of the impacts immediately surrounding the lease but also the consequences down the road of burning the fuel once it’s extracted,” said Richard L. Revesz, an expert on environmental law at New York University. “That’s enormously important.”

Two-thirds of the cases accuse the Trump administration of violating the Administrative Procedure Act, a nearly 73-year-old law that forms the primary bulwark against arbitrary rule. The normal “win rate” for the government in such cases is about 70 percent, according to analysts and studies. But as of mid-January, a database maintained by the Institute for Policy Integrity at the New York University School of Law shows Trump’s win rate at about 6 percent.

The Department of Health and Human Services’ new rule was accompanied by an assessment of its probable costs and benefits. Conspicuously absent from the tally: any acknowledgment of harms that the rule will impose on low-income women by reducing their access to affordable healthcare.

The agency has invented a new, unnatural way of evaluating regulatory cost that finds no support in the economics literature or in the regulatory practices of prior administrations of either political party.

Andrew Wheeler’s EPA may not be as dramatic as Scott Pruitt’s, but it still suffers the pathologies that make its work poor quality—and unlikely to hold up in court.

An efficient approach would be to pass one bill aimed at enacting the "Green New Deal," because it could go after multiple sectors at once, said Derek Sylvan, strategy director at New York University School of Law's Institute for Policy Integrity.

Such a bill would have clear goals and pathways to meet targets, which could then be put into place through regulatory approaches, he said.

One potential model might be America's Water Infrastructure Act of 2018, S. 3021, which sought to incorporate local input into projects and safeguards to make sure state infrastructure spending meets specific criteria, Sylvan said.