Publications

This Article seeks to understand the shortcomings of current agency practice and outline what agencies can do better. To do so, it examines fifteen significant proposed or final agency rules promulgated during the Biden-Harris Administration’s first eighteen months and reveals four categories of limitations. First, agencies often pursue inconsistent goals across different regulatory initiatives. Second, they do not grapple with the core issue that distributional analysis should raise: the extent to which the better distributional consequences of one alternative should trump the higher net benefits of another alternative. Third, agencies do not apply a consistent approach to defining disadvantaged groups, which makes the analysis inconsistent and unpredictable. Fourth, the distributional analysis relies on a truncated set of costs and benefits, and thus presents an incomplete picture of the consequences of regulation on disadvantaged communities.

Discretion is not deference. That statement may seem obvious to some. To many, however, the two terms are interchangeable. They are not. And the distinction is important, especially now that the Supreme Court has eliminated the deference doctrine associated with Chevron U.S.A., Inc. v. Natural Resources Defense Council. Stated succinctly, deference concerned ambiguous statutory terms or phrases (and implicit grants of authority), while discretion often concerns unambiguously broad statutory terms or phrases (and explicit grants of authority). So even with deference gone, agencies that can point to unambiguously broad terms or phrases in the statutes they administer will retain wide latitude to carry out their missions. 

This working paper summarizes the first empirical study of how major rules, as defined under the Congressional Review Act (CRA), fare in federal court. The study covers each of the 1,870 major rules issued from the CRA’s enactment in 1996 through the end of the Trump Administration. The roughly 24-year period covering four administrations (two from each party) is the longest continuous timespan of any empirical study of agency win rates.

What's the function of oil and gas permitting agencies? Despite broad statutory grants to federal agencies, oil and gas companies increasingly argue that the role of those agencies is to promote development regardless of whether it is socially desirable. But this “Narrow Reinterpretation,” in addition to lacking textual support, is at odds with longstanding practice. What changed? Not the governing statutes, at least not in pertinent part. But the energy sector has: renewable sources have replaced coal as the primary competitors to oil and gas. 

In recent years, federal courts have increasingly assessed the legality of regulatory action by considering its antecedents, or lack thereof, in prior agency actions. Yet as this article explains, federal agencies have insufficiently adapted to this increased judicial focus on regulatory antecedents. While significant agency rulemakings typically include extensive dockets with many different types of analysis, they have generally provided limited analysis of regulatory antecedents. This article suggests that agencies more extensively catalog regulatory antecedents at all stages of the rulemaking process, from drafting to promulgation.