The Regulatory Rollback Wave Just Hit a Wall It Didn't See Coming

The regulatory rollback agenda that several agencies have been pursuing through the spring hit a kind of procedural friction this week that practitioners said had been broadly expected but that had not previously taken on a clear shape. Several courts issued rulings or guidance narrowing the scope of rule changes that the most aggressive agencies had advanced on accelerated timelines. The pattern across the rulings is consistent enough that the agencies still in the early stages of their own rollback agendas are now visibly recalibrating.

Where the friction is concentrated

The friction is concentrated in agencies that moved fastest and that left the thinnest record on the reasoning behind their changes. The courts are not, in most of the rulings, foreclosing the substantive direction the agencies were trying to take. They are insisting on the kind of procedural record that the underlying administrative law has always required and that the fastest agencies had attempted to compress.

Officials at agencies that have been more deliberate in their rollback work said the rulings, in their reading, are workable rather than restrictive. The procedural record the courts are requiring is the kind their agencies have been building all along. The agencies that have not built that record will, in practical terms, need to either go back and build it or revise the scope of their changes.

What this means for the broader rollback agenda

The rollback agenda is not arrested by this week's rulings, but the operating tempo for the agencies pursuing it is going to shift. Practitioners said the next several months are likely to see fewer announcements and more of the procedural groundwork the courts have now signaled they expect. The slower tempo will frustrate the agencies whose political calendars assumed faster results. It will, in the reading of practitioners, produce changes that are more durable than the ones the faster tempo was on track to produce.

Durability has always been the actual measure of regulatory change. The rulings this week, even where they read as setbacks, may end up improving the durability of what eventually survives.

Related reading: The Quiet Bipartisan Coalition Already Forming Around the Next Court Seat and The Special Master Quietly Rewriting a State's Midterm Map.