The Checks and Balances Letter: March 2026
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Highlights from this edition of Checks and Balances include the EPA moving to deregulate greenhouse gas emissions, and a REINS-style state law in South Dakota
In Washington
EPA revokes Obama-era ‘endangerment finding’ on greenhouse gas emissions
On Feb. 18, 2026, the Environmental Protection Agency (EPA) published a final rule that revoked the agency’s interpretation of the Clean Air Act that found that greenhouse gases could be regulated as pollutants. The EPA first made the interpretation of the Act, known as the ‘endangerment finding,’ in 2009.
President Donald Trump (R) announced the decision and said that "under the process just completed by the EPA, we are officially terminating the so-called Endangerment Finding — a disastrous Obama-era policy that severely damaged the American auto industry and massively drove up prices for American consumers."
Former President Barack Obama (D) said that after revoking the finding, “we’ll be less safe, less healthy and less able to fight climate change — all so the fossil fuel industry can make even more money.”
What is the endangerment finding?
The endangerment finding is an interpretation of the Clean Air Act (CAA), a federal law that empowers the EPA to regulate air pollutants. In 2007, the U.S. Supreme Court ruled in Massachusetts v. Environmental Protection Agency that the EPA could regulate carbon dioxide, a greenhouse gas, as a pollutant under the CAA. In 2009, the EPA found that greenhouse gases were a danger to public health and welfare, and that the agency could therefore regulate them under Section 202(a) of the CAA. The EPA issued several subsequent greenhouse gas emission regulations, citing the endangerment finding as their basis.
Section 202(a) of the CAA authorizes the EPA to regulate “any air pollutant from any class or classes of new motor vehicles or new motor vehicle engines… which may reasonably be anticipated to endanger public health or welfare.” In the endangerment finding, the EPA asserted that “six greenhouse gases taken in combination endanger both the public health and the public welfare of current and future generations,” and “that the combined emissions of these greenhouse gases from new motor vehicles and new motor vehicle engines contribute to the greenhouse gas air pollution that endangers public health and welfare under CAA section 202(a).”
The Feb. 18 final rule “rescind[ed] the Administrator's 2009 findings of contribution and endangerment and repealing all greenhouse gas (GHG) emission standards for light-duty, medium-duty, and heavy-duty vehicles and engines to effectuate the best reading of Clean Air Act (CAA) section 202(a)(1).”
The final rule asserted that the endangerment finding and regulations based on it exceeded the EPA's statutory authority under CAA section 202(a)(1), and that they “rested on a profound misreading of the Supreme Court's decision in Massachusetts v. EPA.” The rule cited two recent major Supreme Court cases for this reasoning — West Virginia v. Environmental Protection Agency (2022) and Loper Bright Enterprises v. Raimondo (2024). In West Virginia v. EPA, the Supreme Court found that the EPA had exceeded its authority in regulating greenhouse gas emissions from power plants under the CAA because the major questions doctrine required Congress to specifically grant authority for such a major policy rather than broadly delegating general authority. In Loper Bright v. Raimondo, the Court struck down the Chevron doctrine of judicial deference to agency interpretations of statute, which compelled federal courts to defer to a federal agency's interpretation of an ambiguous or unclear statute that Congress delegated to the agency to administer.
EPA press secretary Brigit Hirsch said that the EPA was “following the law exactly as it is written and as Congress intended — not as others might wish it to be.”
Daniel A. Farber, a law professor at the University of California, Berkeley, wrote that, in addition to the question of overturning judicial precedent from Massachusetts, the EPA's justification amounted to a "questionable basis for an agency charged with environmental protection to turn its back on a problem of this magnitude.”
What does repealing the endangerment finding mean for climate policy?
Because the 2009 endangerment finding served as the legal basis for federal greenhouse gas standards for vehicles, rescinding it reshapes the federal government's approach to climate regulation under the Clean Air Act.The rule frames this shift as a correction of statutory interpretation rather than a change in scientific assessment.
On Feb. 18, the American Public Health Association and 16 other groups filed a lawsuit in the U.S. Court of Appeals for the District of Columbia challenging the final rule.
Want to learn more?
In the states
South Dakota Legislature passes REINS-style bill
On March 12, 2026, Gov. Larry Rhoden signed Senate Bill (SB) 133, legislation that adopts a REINS-style law and prohibits judicial deference to an agency's determination of whether a rule would be subject to the REINS-style law. South Dakota is now the 10th state with a REINS-style law (the sixth with a Republican trifecta, with the other four having divided governments), and at least the seventh state where the legislature has restricted judicial deference to agencies since the U.S. Supreme Court decided Loper Bright Enterprises v. Raimondo — holding that federal courts may not defer to an agency’s interpretation of an ambiguous statute — in 2024.
The bill passed the South Dakota Senate 33-0 on Feb. 24 with two members absent. It passed the state’s House of Representatives 66-1, with three absences, on March 3.
REINS-style laws
REINS-style state laws require legislative approval or review of proposed agency regulations with certain financial or economic impacts before they become effective. These laws differ in each state by the legislative entity required to review and approve regulations and by the economic threshold that triggers legislative involvement.
Fiscal-analysis requirements generally accompany REINS-style laws, though some states require agencies to conduct cost analyses without also requiring legislative action according to the results.
Judicial deference
Judicial deference to an agency is the practice of a court deferring to an agency’s interpretation of a statute, regulations, or other determination. Perhaps the most well-known, Chevron deference prohibited courts from deferring to an agency's interpretation of an ambiguous statute before the U.S. Supreme Court struck down Chevron deference at the federal level in June 2024.
On Feb. 23, 2026, the South Dakota Senate passed a bill that would have broadly limited judicial deference, but it did not pass the House Judiciary Committee. By passing SB 133, the legislature prohibited a narrower form of deference: to an agency's determination of whether a rule meets the definition of "major rule." Agencies must make this determination during the rulemaking process as part of the regulatory impact analysis.
South Dakota’s REINS provisions
South Dakota Senate Bill 133 changes how the state handles major rules — defined as any regulation expected to cost businesses, individuals, local governments, or other non-government groups more than $3 million over two years. When an agency proposes a major rule, it must prepare a cost analysis for a legislative oversight committee (the IRRC). The IRRC then has three options: send the rule back to the agency to be revised so it no longer qualifies as major, confirm the agency has legal authority to issue the major rule, or recommend an up-or-down vote in the full legislature.
If anyone challenges whether a rule qualifies as major, courts must review that question without deferring to the agency's judgment.
Zooming out
As of March 17, we tracked 15 states that have taken action on 21 REINS-style bills in 2026. Two bills have become law: South Dakota’s SB 133 and Indiana’s Senate Bill 4. SB 4 changed Indiana’s existing REINS-style law, originally enacted in 2024, by decreasing the threshold that triggers legislative review from $1 million over a two-year period to $500,000 over the same time period.
Two bills — in Missouri and South Carolina — have passed one chamber. In total, of the states that have taken action on REINS-style bills this year:
As of the same date, Ballotpedia has tracked 10 states that took action on 13 bills related to judicial deference in 2026. Four bills passed one chamber, and Kansas enacted a bill to prohibit judicial deference on Feb. 6.
- Eleven states had Republican trifectas.
- One state had a divided government.
- One state had a Democratic trifecta.
Want to learn more?
- REINS-style state laws
- Judicial deference
- 50-state research: Legislative oversight of executive agency rulemaking
- Chevron deference
- Auer deference
Featured commentary
Ad Law Reading Room: “Administrative Decentralization,” by David Fontana. Last month, Ad Law Reading Room featured the abstract of David Fontana’s “Administrative Decentralization.” The feature promotes the work, stating that it provides a helpful set of considerations and remains relatively unbiased while discussing the idea of decentralizing the administrative state by moving administrative officials and bodies physically out of Washington.Click here to read the full article.
Regulatory highlight
In this section, we highlight regulations and discuss the regulatory landscape. In this edition, we focus on how the use of the Congressional Review Act has changed over time and how it's being used to repeal regulations issued under the Biden administration.
Notable regulations
- The Office of Information and Regulatory Affairs (OIRA) completed its review of an Executive Office for Immigration Review interim final rule that requires the Board of Immigration Appeals to summarily dismiss all appeals unless a majority of the permanent Board members vote en banc to accept an appeal, with exceptions.
- OIRA also concluded its review of an Environmental Protection Agency (EPA) final rule repealing a 2024 amendment to its filterable particulate matter (fPM) emission standard for coal- and oil-fired electric utility steam-generating units.
Congressional Review Act
The Congressional Review Act (CRA) allows Congress to repeal executive agency rules with joint resolutions of disapproval. Though the 1996 law was designed as a legislative check on executive agency rulemaking, it's been most often used to repeal regulations from prior administrations using a lookback provision that allows Congress to review regulations issued within the last 60 days of the preceding legislative session. Under the CRA, Congress has 60 working days after a rule has been submitted to Congress to introduce a joint resolution of disapproval.
The 119th Congress has expanded the use of the CRA to nullify land management plans and Clean Air Act waivers. Though the nullified agency actions took place before the 60-day lookback period, the Government Accounting Office (GAO) issued five 2025 opinions in March, June, July, August, and September that stated the agency land management plans and waivers met the definition of a rule under the CRA, therefore requiring agencies to submit them to Congress for review. The GAO has issued more recent decisions regarding CRA eligibility for other agency regulations, including the Record of Decision and Approved Resource Management Plan for the Grand Staircase–Escalante National Monument, which legislators have since challenged through joint resolutions of disapproval in both the House and Senate.
Forty-two (42) resolutions to nullify agency regulations have been enacted, with Donald Trump (R) signing 38 of them across both terms. In the current congressional session, 106 bills were pending in the first chamber, 27 passed one chamber, and 22 bills have been enacted as of March 19.
- Want to learn more?
Pick of the news
Federal
Congress fully funds the Education Department despite White House attempts to dismantle the agency. Congress passed an annual appropriations bill, which was signed by the President on Feb. 3. The bill fully funded the Education Department, allocating more money than last year, despite the President’s attempts to dismantle the department. USAToday
Lawsuit filed against a rule that would allow certain federal workers to be terminated at will, among other provisions. This month, a group of public service organizations and federal unions updated their lawsuit to include specific allegations against a rule that was finalized on Feb. 6. The rule would allow certain federal employees with policy-related roles to be terminated at will and would require certain complaints to be handled within agencies rather than by the Office of Special Counsel. New York Times
Trump administration unlikely to win case to shut down the Consumer Financial Protection Bureau (CFPB). The D.C. Circuit Court gave opinions indicating that the majority was unlikely to side with the administration. Courthouse News
The Office of Personnel Management (OPM) rule changes where fired federal employees can appeal termination. Historically, former federal employees have had the right to appeal their termination to the Merit Systems Protection Board. A new rule proposed by OPM would require terminated federal employees to appeal directly to OPM. Some have expressed concerns due to the fact that the OPM director reports to the president. Reuters
Cybersecurity and Infrastructure Security Agency (CISA) lacking leader and affected by shutdown. Due to decreased funding to CISA’s parent agency, DHS, and a lack of a Senate-confirmed leader for the agency, employees have expressed demoralization and doubt of the agency’s ability to defend US infrastructure against cyber threats. New York Times
Commodity Futures Trading Commission (CFTC) Chair states the federal agency, not the states, has authority to regulate prediction markets. CFTC Chair Mike Selig stated that the federal CFTC has the authority to regulate prediction markets and stated that the agency would take states that challenge this authority to court. Punchbowl News
State
Proposed bill would require Kansas to submit personal data of public assistance recipients to the federal government. Senate Bill 428 would require the secretary of the Department for Children and Families to respond to federal data requests from the U.S. Department of Agriculture of the U.S. Department of Health and Human Services. As of Mar. 10, this bill remained in its chamber of origin, with the most recent action being a committee hearing that occurred on Feb. 3. News from the States
Constitutional amendment and bill introduced in Wisconsin that would grant legislature more control over administrative rulemaking. Constitutional amendment AJR 133 would allow the legislature to suspend administrative rules in part or in whole by passing a joint resolution. AB 955 would require agencies to have explicit statutory authority to promulgate rules, removing the current statute’s language, which allows for agency interpretation. Wisconsin Examiner
Bill would end popular election of Alabama Public Service Commission (PSC) members. Alabama HB 392 would end the election of the members of the Alabama PSC and require the governor, the Alabama House speaker and the Alabama Senate president pro tempore to appoint members as the current members finish serving their terms. News from the States
Oregon bill increases Public Health Officer powers regarding vaccines. Oregon SB1598 would give the Public Health Officer the authority to require some health benefit plans to cover vaccines and to “issue a standing order for a prescription to control, prevent, mitigate or treat any infectious or noninfectious disease or other significant public health concern.” The bill also requires certain health benefit plans to cover preventative measures, such as vaccines, in accordance with federal rules or that are recommended by the Public Health Officer. Oregon Capital Chronicle
Legislative Tracking Update
Since our last newsletter edition, Ballotpedia tracked significant legislative action (enactments, vetoes, and passage through both chambers) in 18 states on 75 bills related to the administrative state, as of March 16. Alabama Gov. Kay Ivey (R) signed 14 bills, Idaho Gov. Brad Little (R) signed two bills, Indiana Gov. Mike Braun (R) signed five bills, Maryland Gov. Wes Moore signed two bills, New Mexico Gov. Michelle Lujan Grisham (D) signed one bill, Oregon Gov. Tina Kotek (D) signed one bill, South Dakota Gov. Larry Rhoden (R) signed one bill, and West Virginia Gov. Patrick Morrisey (R) signed one bill. The Kentucky Legislature enacted one bill over Gov. Andy Beshear's (D) veto, and the Wyoming Legislature enacted one bill over Gov. Mark Gordon's (R) veto.
Legislatures in the following states passed at least one bill awaiting executive action: Florida, Maine, Mississippi, Nebraska, Oregon, South Dakota, Utah, Virginia, Washington, West Virginia, and Wisconsin.
Ballotpedia tracked a total of 1,745 bills related to the administrative state in 2026, as of March 16, 2026.
