Gray Matters

Jace Lington speaks with Rupert Darwall about his new book, The Age of Error and the West's Undoing. In the book, Darwall argues that Western leaders doubled down on policies to fight climate change after the 2008 financial crisis, which led to a clash between environmentalism and geopolitics. He also makes the case that politicians became codependent on experts (central bankers, climate scientists, and public health officials) in ways that undermine democratic accountability and lead to worse policy outcomes.

Show notes:

• YouTube version
• Rupert's Book

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In the keynote panel from the Gray Center's May conference, moderator Adam White (Gray Center, AEI) speaks with Michael Williams (West Virginia Solicitor General) and Matt Leopold (Holland & Knight and former EPA General Counsel) about federal energy and environmental regulation, focusing on the Supreme Court’s pending Suncor v. City of Boulder case and broader post-Chevron litigation dynamics.

The case concerns whether state tort law can be used to impose liability for climate change damages and effectively regulate interstate emissions, raising preemption and territorial-jurisdiction concerns. The discussion covers potential federal common law and Clean Air Act preemption, limits on extraterritorial regulation, and skepticism of Dormant Commerce Clause arguments. They connect these issues to the EPA’s current deregulatory efforts, the end of Chevron deference after Loper Bright, and questions about Mass. v. EPA.

Show notes:

• YouTube version
• 2024 Gray Center webinar on Federal Preemption and Environmental Regulation
• 2024 Gray Matters Episode about the Role of State Tort Law in the World of Climate Lawsuits and Federalism

In this panel discussion, moderator Aaron Nielson (University of Texas at Austin) speaks with Michael Buschbacher (Boyden Gray PLLC), Matt Gregory (Gibson Dunn & Crutcher LLP), and Stephanie Maloney (U.S. Chamber Litigation Center) about legal remedies and the state of strategic litigation against agencies.

Show notes:
YouTube version

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Oklahoma Secretary of Energy and Environment Jeff Starling and the Fulcrum Foundation’s Reeve Bull discuss a new regulatory reform pilot project in Oklahoma. They share how Oklahoma is using AI to reform regulatory processes, reduce costs, and improve efficiency in government.

Show notes:
Reeve T. Bull, “Oklahoma is Leading the Way on AI-Powered Regulatory and Permitting Reform”

Jace Lington and Bennett Nuss talk with NCLA President and Chief Legal Officer Mark Chenoweth about the evolving landscape of injunctions in the legal system, particularly in light of recent cases likeTrump v. CASA. They explore the definition and function of injunctions, the surge of nationwide injunctions during the Trump administration, and the implications of forum shopping in legal proceedings. The conversation also delves into the role of the Administrative Procedure Act in judicial review and the strategic maneuvers of agencies to circumvent judicial oversight.

• Check out NCLA's latest cases here

• "The Truth of Erasure: Universal Remedies for Universal Agency Actions," by T. Elliot Gaiser, Mathura Sridharan, and Nicholas Cordova

• "Nationwide Injunctions' Governance Problems: Forum-Shopping, Politicizing Courts, and Eroding Constitutional Structure," Ronald A. Cass

• "How Should the Court Respond to the Combination of Political Polarity, Legislative Impotence, and Executive Branch Overreach?" Richard J. Pierce, Jr.

Adam White, Jace Lington, and Bennett Nuss analyze the recent Supreme Court decisions in Trump v. Slaughter and Trump v. Cook, focusing on the implications for executive power, administrative agency independence, and the future of administrative law.

• Adam White in SCOTUSblog

• Aditya Bamzai & Aaron Nielson on the Fed and Article II at The Cornell Law Review

Adam White hosts Chief Judge Susan G. Braden (Ret.) to discuss the Supreme Court’s decision in Trump v. Slaughter, which held the Federal Trade Commission’s statutory independence unconstitutional and explicitly overruled Humphrey’s Executor. Braden argues the ruling will ripple across administrative law by treating agencies with authority to file lawsuits on behalf of the United States as executive agencies subject to presidential control, and by limiting “independent” agencies to advisory roles.

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• Judge Braden's paper on the future of the FTC
• Adam White's analysis of Slaughter and Cook in SCOTUSblog

In this first panel from the Gray Center’s May conference, moderator Christopher J. Walker (University of Michigan) speaks with Megan Brown (Wiley Rein LLP), Roman Martinez (Latham & Watkins LLP), and Maria Monaghan (U.S. Chamber Litigation Center) about what courts are doing after Chevron’s overruling in Loper Bright. They discuss unresolved issues now playing out in lower courts, including Skidmore’s role, congressional delegation and “policymaking discretion,” stare decisis for prior Chevron-era precedents, and implications for other deference doctrines like Auer/Kisor.

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In this final panel from the Gray Center’s October conference, moderator Aaron Nielsen (UT Austin) speaks with Judge Naomi Rao (D.C. Circuit) and Judge Steven Menashi (Second Circuit) about their role as judges after Loper Bright ended Chevron deference. Rao and Menashi describe their interpretive approaches—text-first, but attentive to context, structure, statutory purpose, and legal terms of art—and emphasize that interpretation involves judgment. They argueLoper Bright largely restores courts’ independent duty to decide questions of law under the APA, while still allowing agencies discretion where statutes leave open-textured implementation choices or explicit delegations. The panel discusses D.C. Circuit practices, post–Loper Bright arguments about expertise, “express delegation,” Skidmore, forum shopping, major questions doctrine, scientific complexity, and how the debate may shift toward Article I and nondelegation.

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The third panel discussion from the Gray Center’s Fall 2025 conference featuring:

• Noah Phillips, Cravath, Swaine & Moore LLP
• Matt Stoller, American Economic Liberties Project

• Moderator:
Senior Judge Douglas Ginsburg, D.C. Circuit

Jace Lington and Bennett Nuss chat with Chad Squitieri about his new paper, Congress in the Mouth of a Lawyer, which focuses on the president’s role in the lawmaking process. Prof. Squittieri discusses the constitutional role of the president in lawmaking, the importance of precise definitions of Congress, and implications for judges interpreting statutes. He explores how understanding the president's involvement influences legal doctrines and the separation of powers.

The second panel discussion from the Gray Center's Fall 2025 conference featuring:

• Sarah Binder, Brookings Institution
• Jonathan Macey, Yale Law School
• Aaron Nielson, University of Texas

• Moderator:
Adam White, C. Boyden Gray Center

The first panel discussion from the Gray Center's Fall 2025 conference featuring:

• James Burnham, King Street Legal, and formerly of the U.S. Department of Government Efficiency

• Susan Dudley, former Administrator, White House Office of Information and Regulatory Affairs; Founder & Senior Scholar, GW Regulatory Studies Center; Distinguished Professor of Practice, Trachtenberg School of Public Policy & Public Administration

• Lisa Heinzerling, Georgetown University Law Center

• Moderator: Mene Ukueberuwa, Wall Street Journal

Jace Lington and Bennett Nuss chat with Caroline Cecot about how recent changes in the EPA's analytical methods affect transparency and environmental protection. She discusses the evolution of cost-benefit analysis from a deregulatory tool to a framework for safeguarding health and the environment, and how recent administrative moves might revert it to "arbitrary and capricious" territory. The conversation delves into critical questions about regulatory decision-making, the role of Congress, and the impact of transparency on public trust.

Notes:

• Benefit-Cost Analysis Under Threat, Caroline Cecot, The Regulatory Review
• Rethinking Health-Based Environmental Standards, Michael Livermore and Richard Revesz, New York University Law Review
• Deregulatory Cost-Benefit Analysis and Regulatory Stability, Caroline Cecot, Duke Law Journal
• EPA Turbine Rule, January 2026

Jace Lington and Bennett Nuss chat with Adam White about the recent Supreme Court case, exploring the nuances of statutory interpretation, the major questions doctrine, and the implications for executive and legislative powers. The Gray Center team analyzes the court's opinions, historical context, and future legal debates.

Notes:

• Learning Resources, Inc. v. Trump
• Michael D. Ramsey making an originalist defense of the Major Questions Doctrine
• John Ehrett's article at The American Mind about the New Right and the Major Questions Doctrine
• Adam White on the Court's approach to presidential power
• John Eastman on the tariff as an exercise of foreign policy

Jace Lington and Bennett Nuss chat with Patrick A. McLaughlin about The Nondelegation Project at the Pacific Legal Foundation, which analyzes compliance with the nondelegation doctrine using AI and machine learning. He highlights the significant number of regulatory restrictions in the CFR, the role of vague statutes, and the importance of judicial doctrines like the intelligible principle test. The discussion also touches on the project's implications for legislative reform, state-level applications, and the challenges of data collection.

Notes:

• The Nondelegation Project
• Introduction to the Nondelegation Project, Patrick A. McLaughlin and Mitchell Scacchi
• RegData project
• 26 U.S. Code § 7805 (Rules and regulations)
• 26 U.S. Code § 42 (Low-income housing credit)
• Harmonizing Delegation and Deference After Loper Bright, Kristin E. Hickman and Amy J. Wildermuth
• The Virginia Model: How the Commonwealth Build a Best-In-Class Regulatory System, Reeve T. Bull and Patrick A. McLaughlin

Jace Lington chats with Reeve Bull about his experiences running Virginia’s Office of Regulatory Management. Bull discusses Virginia's recent regulatory reform efforts, highlighting the successful streamlining of regulations and the significant savings achieved. He emphasizes the importance of transparency in the permitting process and the need to balance regulation with economic growth. Bull addresses criticisms of deregulation, particularly concerning health and safety, and explains how Virginia's approach has focused on maintaining essential protections while reducing unnecessary burdens. The conversation also explores the integration of AI in regulatory processes and the importance of considering the impacts on local governments and small businesses.

Notes:

• The Virginia Model: How the Commonwealth Build a Best-In-Class Regulatory System, Reeve T. Bull and Patrick A. McLaughlin

• Virginia’s New Approach to Regulatory Analysis, 2023 Gray Matters Episode with Andrew Wheeler and Reeve Bull

Jace Lington and Bennett Nuss chat with Hillsdale College Professor Ronald J. Pestritto about his recent article tracing the rise of the administrative state and the revolution it wrought in the federal government. Pestritto explores the evolution of the administrative state, tracing its roots back to the Progressive Era and the shift from a government based on consent to one grounded in expertise. He argues that this transformation has led to a significant disconnect between elected officials and the bureaucratic agencies that wield substantial power without direct accountability to the electorate. The conversation delves into the implications of this shift, particularly in the context of the Trump administration's attempts to rein in the administrative state and the ongoing debates surrounding judicial oversight and legislative responsibility.

Notes:

• Government By the Unelected: How It Happened, and How It Might Be Tamed, Ronald J. Pestritto
• The Original Progressives Are No Guide for Today's Conservatives, Ronald J. Pestritto

Jace Lington and Bennett Nuss chat with Notre Dame Law Professor Jeffery Pojanowski about his forthcoming paper, “Faces of Formalism.” The paper explores the complexities of formalism in legal interpretation, discussing its two faces: authority and method. They delve into concrete examples, such as Gorsuch's application of textualism in the Bostock case, and examine the tensions that arise between these two aspects. Pojanowski offers some ideas about how to look for authoritative answers while respecting rules meant to limit judicial discretion.

Notes:

• Faces of Formalism, Jefferey Pojanowski
• Neoclassical Administrative Law, Jeffrey Pojanowski

Adam White, Jace Lington, and Bennett Nuss reflect on the significant regulatory developments of 2025, focusing on under-reported stories in the administrative state. They discuss the future of the Federal Reserve, the evolving relationships between public and private entities, the impact of repealing disparate impact laws, and the diminishing role of Congress.

Notes:

• Trump Regulatory Policy: 2025 Compendium, Bridget C.E. Dooling, Notice & Comment Blog
• The Brave New World of Administrative Law, Adam White and Bennett Nuss, 2024 A Hard Look Podcast