By Paul Bubbosh
The views and opinions expressed are those of the author and do not necessarily reflect the official policy, position, or views of George Mason University and its employees.
Here is a prediction: The Trump Administration will lose 75 percent of all legal challenges to its regulatory actions on energy and the environment.
Wow, that’s a bold prediction. Really, you think so?
Here are some facts in support of that prediction.
Let’s begin with a simple baseline. Most major rules out of the Environmental Protection Agency will be challenged. That’s just the nature of administrative agency rulemaking. EPA lawyers are accustomed to these challenges, and for every win or loss in court they get better at writing rules that pass judicial review. According to the Institute of Policy Integrity, EPA wins (or has a mixed result–some good, some bad) in about 75 percent of legal challenges[1]. Not too shabby; however, that win rate differs depending on who’s in charge of the administration. Here is where it gets interesting.
Under Presidents Bill Clinton, George W. Bush, and Barack Obama, the administrative win/mixed rate was 77 percent[2]. This means the government across these three administrations prevailed 77 percent of the time in court. Trump? Well, Donald Trump not so great. He had a 43 percent win/mixed rate. Yep, Trump’s win/mixed rate was far less than his predecessors. In fact, if you isolate the two Republican presidents and look just at the win column, George W Bush’s win rate was 55 percent compared to Trump’s 31 percent. To be fair, win rates improve in the second term for all administrations. So, if we just focused on George W Bush’s first term wins, he still beats Donald Trump by over 20 points.
So, why is Trump losing so many legal cases?
The answer is probably because his demands (really his instincts) are unrealistic, or dare I say it, illegal. I imagine he tells his department and agency heads to do something, and if he is told about the likelihood of losing in court (if he is told at all), his reaction is probably “I don’t care. Just do it.” In one example, EPA knew that cancelling environmental grants was illegal, but it went ahead and did anyway.[3] This is the Performative President. It has less to do with policy and facts and is more about pleasing television viewers.
In fact, I do not believe sound policy development is associated with any of Trump’s decisions on the environment and energy. Or at least policy in the sense of following science, engineering, economics, or other fundamental building blocks of policy. Policy is supposed to reduce uncertainties by considering all these building blocks of data and insights, but Trump seems to favor and foster uncertainty. For example, Trump wants abundant and affordable energy. Renewables, like wind and solar power, are cheaper sources for electricity; and solar and wind plants can be built much faster than fossil and nuclear power plants. So, what’s Trump’s big energy move: declare an energy emergency and increase fossil fuel energy. Just so we are clear, this will result in the opposite of affordability. The fact is that an electric grid with more fossil fuel energy sources (natural gas, coal) will cost more than one with more renewables. His actions are not based on intelligent deliberation about what is best for America. It is all a performance.
Another major development affecting his loss rate is at play here—the Supreme Court. In 2024, the Supreme Court handed down its decision in Loper Bright Enterprises v. Raimondo. This case over-turned a long-held doctrine on judicial review of agency regulations (remember, most environmental rules are challenged in court). Prior to this case, if an administrative agency issued a rule that interpreted a federal law in an area that was ambiguous or not addressed by Congress, the court would defer to the administration agency’s view unless such views were found, by the court, to be arbitrary and capricious. In other words, when Trump won only 3 out of 10 cases in his first term, the court was finding his administration’s actions arbitrary and capricious 70 percent of the time[4]. This is an incredible losing record, especially when you consider the past three administrations loss rate was only about 30 percent on the Administrative Procedure Act’s arbitrary and capricious clause. Therefore, when given maximum deference by the courts, Trump was still losing BIG TIME.
Consider Trump’s rule that replaced Obama’s Clean Power Plan. Trump called his rule the Affordable Clean Energy rule. A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit rejected this rule and called it “a fundamental misconstruction of the Clean Air Act.” Ouch. Imagine the Department of Justice lawyers who wrote the briefs and argued this case. They were told by the court that they essentially had no clue in interpreting the law in this case. This is what happens when political posturing drives administrative and legal governance. It is all a performance.
Back to Lopper Bright. The Supreme Court reversed the precedent on deferring to administrative agency interpretations in areas of statutory ambiguity and gaps left open by Congress. Now, the Court will decide what is the best interpretation of statutory law. In practice, this means the administrative agency will not get a free pass in areas of ambiguity or gaps in the law. If Trump lost 70 percent of the time with maximum deference by the courts, I could only imagine his loss rate will climb higher now that judges are interpreting federal laws.
WAIT A MINUTE. Did you just say judges get to make the call? How is that going to increase Trump’s loss rate in the courts since the Supreme Court leans conservative? Here is the deal. The Supreme Court only hears about 80 cases per term; meaning most cases are heard by lower courts where, I would venture, there is more balance in views. Even if a challenge gets to the Supreme Court, and I’m sure some cases will get there, I believe the justices will tread carefully about agreeing with wildly incongruous interpretations of federal law.
The final area worth watching is how Trump will react to court decisions. Recently, Trump called for the impeachment of US District Judge James Boasberg for temporarily blocking the deportations of alleged Venezuelan gang members. U.S. Supreme Court Chief Justice John Roberts fired off a statement pushing back against the use of impeachment over disagreements in law. Trump is now sidestepping Boasberg with some claim of state secrets (Boasberg just wants to know if trump violated his order). For now, Trump is in check with the Judicial Branch. If he defies the courts, he will cross a line, and American will face a constitutional crisis. At that point, we are in full authoritarian state. Trump has checked off the other boxes in the authoritarian playbook: intimidating your allies (Congressional Republicans cower), threatening the intellectuals and academics to acquiesce on culture wars (Columbia University caves), and silencing your competitors (Democratic FTC Commissioners fired). The courts and the law are the last stand.
On January 20, 2029, Trump will officially end his Presidency. I believe once he is gone, this bizarre experiment in performance art and de-democratizing America will end. What we will be left with as we write off this chapter of U.S. history can best be described by George W Bush’s reaction to Trump’s 1st inaugural speech: “That was some weird shit.”
[1] Tracking Major Rules in the Courts – Institute for Policy Integrity
[2] https://policyintegrity.org/tracking-major-rules/presidential-win-rates
[3] “EPA knew it made legal error with canceled grants, emails show,” Washington Post, March 25, 2025.
[4] Note, not all legal cases are decided on this measure alone; however, broadly speaking the Administrative Procedures Act governs judicial review of agency actions and interpretations.