Recent Projects – Clinic Projects

In recent years, Congress has extensively used the Congressional Review Act (CRA) to veto agency rules. A CRA resolution not only rescinds the agency rule, but prevents the agency from ever reissuing a rule that is “substantially the same” as the disapproved rule. This case tests the meaning of “substantially the same.” Our brief defends a prior Sixth Circuit panel’s ruling, explaining that the CRA’s “substantially the same” test looks at the entire rule, not each provision separately. Our brief analyzes the CRA’s text, caselaw, legislative history, and Congressional practice to support this argument. It also explains that Petitioners’ reading is untenable and would produce unprecedented and highly odd results. The interpretation of the “substantially the same” provision will have significant implications for agency authority following a CRA resolution.

In 2020, EPA issued a rule allowing “major sources” of hazardous air pollution under Section 112 to reclassify as “area sources,” and become subject to less stringent pollution limits. The 2020 rule was challenged in the present litigation and then put into abeyance during the Biden Administration. In 2024, EPA issued another rule, specifying that certain reclassified sources would be subject to equivalent pollution limits as major sources. Last year, Congress disapproved the 2024 rule via a disapproval resolution under the Congressional Review Act. In an amicus brief submitted in the litigation challenging the 2020 Rule, we explain that the Congressional Review Act is not relevant to the outcome of this case.

We submitted comments to the Administrative Conference of the United States (ACUS) on its Draft Recommendations of best practices for agencies developing and using temporary rules. While we agreed with many of the proposed recommendations, we suggested that ACUS strengthen its recommendations.

The Institute for Policy Integrity offered comments on a rule proposed by the Occupational and Safety Health Administration (OSHA), which seeks to “reassess and appropriately narrow” its interpretation of the General Duty Clause. In particular, OSHA proposes to renounce authority to issue citations for hazards “arising from inherently risky activities that are integral to the essential function of a professional or performance-based occupation” and that “cannot be eliminated without fundamentally altering the activity.”

Policy Integrity submitted comments to the FDA regarding its proposal to require front-of-package (FOP) nutrition labeling. FDA proposes to require FOP nutrition labeling to help consumers evaluate food products at a glance. We submitted comments urging FDA to expand on its explanation of its statutory authority for the proposed rule and to bolster its analysis of how the rule will deliver net benefits for consumers and public health.

New York's Environmental Justice Siting Law aims to protect disadvantaged communities from disproportionate pollution burdens by calling for amendments to the State Environmental Quality Review Act (SEQRA). To support agencies’ efforts to follow the revised SEQRA process, the New York Department of Environmental Conservation (DEC) created the Disadvantaged Communities Assessment Tool (DACAT), a screening tool that is meant to assist agencies in the disproportionate pollution burden assessment, and a workbook that describes DACAT and guides applicants on how to complete environmental assessment forms. Policy Integrity offered several comments to DEC regarding DACAT.

CFPB recently finalized its overdraft credit rule, which closes a loophole that allowed banks to charge exorbitant overdraft fees to consumers without providing the types of disclosure usually required for consumer credit. Together with a fantastic team of clinic students, we submitted comments on the Proposed Rule, offering suggestions for how CFPB could strengthen its economic analysis. The rule's analysis generally aligns with our recommendations, with one section mirroring one of our arguments quite closely.

In 2023, the Department of Energy (DOE) issued new energy conservation standards for consumer water heaters and consumer furnaces. In April 2024, a natural gas trade association challenged the standards in the U.S. Court of Appeals for the D.C. Circuit, arguing that the standards are not economically justified. In response, Policy Integrity filed an amicus brief supporting DOE’s economic analyses and explaining how Petitioners’ and certain amici’s arguments overlook DOE’s sound assumptions and the relevant statutory framework.

In March 2024, the Department of Transportation (DOT) proposed a multifaceted regulation that would facilitate greater access to air transportation for passengers with disabilities, particularly those who depend on wheelchairs and other assistive devices. Policy Integrity submitted comments to the agency arguing that, while DOT persuasively shows that the Proposed Rule carries many important benefits, the agency should improve upon its proposal and the accompanying benefit-cost analysis in several ways