Publications

A critical input in cost-benefit analysis is the discount rate, which determines how much impacts in the future are weighted relative to impacts in the present. Federal guidance currently calls on U.S. agencies to apply discount rates of 3% and 7%. But these rates, particularly the 7% rate, substantially devalue impacts that accrue to future generations, thus putting a thumb on the scale against policies that provide long-term benefits such as environmental and public-health regulation. In April, the Office of Management and Budget (OMB) proposed a comprehensive update to that guidance document, known as Circular A-4. Among other revisions, the draft would update the default discount rate used in federal regulatory analysis to 1.7%. In a letter published in Science, leading global experts on discount rates and cost-benefit analysis support the proposed revision.

The Supreme Court’s recent applications of the major questions doctrine have prompted numerous challenges to pending or proposed regulatory actions, including the Federal Energy Regulatory Commission’s (FERC’s) proposed revisions to Order No. 1000’s regional transmission-planning and cost-allocation rules (Transmission Rulemaking) and updated draft policy statements on certification of new interstate natural gas facilities (Draft Policy Statements). This article addresses the impact of West Virginia v. EPA—the most recent Supreme Court case involving the major questions doctrine—on FERC’s regulatory authority.

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.