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.

The update to how agencies assess costs and benefits of proposed regulations will help ensure that economic analysis applies state-of-the-art approaches to a range of issues, from valuing future impacts to considering distribution and equity, according to Max Sarinsky, senior attorney at the Institute for Policy Integrity at the New York University School of Law. 

The White House released a plan on Wednesday for how the Biden administration seeks to foster a more open and accountable government. Other forthcoming actions include plans over the next year to expand coverage of waivers for domestic procurement laws posted on the “Made in America” website, which was launched under Biden, and to bolster community engagement in the rulemaking process. Richard Revesz, the newly confirmed administrator of the Office of Information and Regulatory Affairs, housed within the White House Office of Management and Budget, will likely be very involved in this.

While reading Isaiah McKinney’s recent piece on Chevron v. Natural Resources Defense Council, I was struck by how different people can see the exact same facts and yet draw such wildly different conclusions from them. Where McKinney sees a problem with lower courts’ applying Chevron while the Supreme Court has relied on it less in recent years, I see lower courts doing exactly what they should be doing: Following Supreme Court precedent until a majority of the Court overrules it.

One of the most important features of West Virginia’s articulation of the major questions doctrine—and perhaps the feature most overlooked—is that it is not a clear-statement rule. At least not yet. Even though the West Virginia majority ultimately agreed with the petitioners that EPA lacked authority to issue the Clean Power Plan under the major questions doctrine, the majority did not use the petitioners’ framework and never used the phrase “clear statement” in its legal analysis.

Federal regulations touch virtually all aspects of American lives, so the Biden administration wants to hear from you on how it can boost public participation in the rulemaking process. Upon taking office, almost two years ago, President Biden issued a memo on modernizing regulatory review, which has not been finalized yet. The president nominated Richard Revesz, most recently the AnBryce Professor of Law and Dean Emeritus at the New York University School of Law, to lead OIRA.

The Yale Journal on Regulation's blog compiled a reading list on the "major questions" doctrine. The list features Mangling the Major Questions Doctrine by Natasha Brunstein & Richard L. Revesz, which attributes the expansion of the doctrine over the last six years to its aggressive use by the Trump Administration.

If confirmed, Revesz would be uniquely positioned to help shield the president’s climate regulations from legal scrutiny, a challenge that has derailed the administration’s decisions repeatedly. While at New York University, Revesz tracked and evaluated the Trump administration’s poor record defending its environmental decisions in court.

Revesz's writings point out that costs and benefits may hit different classes and races differently. Suppose costs were imposed mainly on the poor (which is the history of the failure to regulate pollutants) while benefits went to the rich. And suppose a regulation reversed that pattern. Distributional analysis would show that it is well worth enacting, in contrast to traditional cost-benefit analysis, which looks at averages or, worse, values the life of a poor person as worth less than the life of a rich one. Revesz, assuming he is confirmed, will soon get the chance to put these revolutionary concepts into practice.

The White House has chosen a regulatory review chief who has spent decades analyzing the real-world impacts of executive rulemaking. Richard Revesz, who was nominated this month to head the White House’s Office of Information and Regulatory Affairs, has published multiple volumes on how the government can measure the costs and benefits of its rulemakings. The New York University law professor and founder of the Institute for Policy Integrity also is an expert on environmental litigation — an important attribute given the role a conservative Supreme Court now plays in shaping regulatory policy.