Publications

In West Virginia v. EPA, the Supreme Court expressly relied on the “major questions doctrine” for the first time in a majority opinion to hold that a federal agency lacked authority to issue a regulation. Published in the William and Mary Environmental Law and Policy Review, this paper explores whether West Virginia provides such a framework and concludes that it does. A close look at West Virginia and the alternative frameworks that parties and others urged on the Court in the West Virginia litigation also reveals a great deal about what the major questions doctrine is not.

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.

There has been a general assumption that the norm-breaking was a result of the Trump Administration’s lack of respect for the rule of law and that it would subside when a new administration took office. This article challenges this assumption, showing that the Trump-era toolkit on rollbacks has now also been used aggressively—in some cases more aggressively—by the Biden Administration. Actions that might have been seen as an aberration four years ago should now be regarded as integral components of the administrative state.

As states step up on climate action, they need a way to weigh climate goals against other policy objectives. The social cost of greenhouse gases (SC-GHG) can help policymakers understand the costs and benefits of climate action and inaction. This new guide for state officials explains why the SC-GHG is a useful policy tool and how it can be applied.

Federal agencies frequently provide no justification for their analytical time frame when analyzing the costs and benefits of a policy. This is true even when there are costs and benefits that clearly occur beyond the time frame chosen by the agency. In so doing, agencies risk overlooking key long-term impacts that may justify more stringent regulation.

This report argues that the Office of Management and Budget (OMB) should take steps to improve how agencies consider analytical time frames in their cost-benefit analyses.