Combating Regulatory Attacks: From Response to Resilience

The stakes are particularly high for states in the West like Nevada, where I serve in the legislature. More than 80% of the state’s land is federally managed—the largest share of any state in the country—meaning rollbacks to environmental protections could open our wild spaces for destruction while polluting our scarce water resources. Nevada’s state budget, regulatory agencies, and administrative resources are lean, amplifying the impact of federal regulatory changes. The legislature meets only once every other year for 120 days to build policies and a budget that are highly dependent on federal funding and actions. Changes to Medicaid could push more than 100,000 residents into uninsurance, and the state is scrambling to enact Affordable Care Act protections to ensure that families are not again denied coverage or care due to pre-existing conditions. Educators are fighting to ensure that federal protections for special education and civil rights don’t disappear overnight, leaving our most vulnerable children unable to learn.

The recent Supreme Court decision in Loper Bright v. Raimondo effectively eliminated 40 years of “Chevron deference,” in which courts typically deferred to federal agencies’ interpretations of ambiguous laws. This precedent was applied to more than 18,000 cases, allowing agencies to successfully tackle new challenges and changes in the absence of action by an increasingly unproductive Congress. The loss of this deference has significantly undermined the stability, agility, and authority of federal agencies. It throws four decades of regulations into question, empowers special interests to go to court, and likely creates a chilling effect for agency action.

Concurrently, the Trump administration’s implementation of Project 2025 and DOGE has taken a chainsaw to the executive branch from within. Essential institutions, including the Department of Education and the Consumer Financial Protection Bureau, have been targeted for complete elimination. Funding has been frozen, staff have been pushed out and fired, and a blitz of executive orders, secretarial orders, and regulatory rollbacks have hampered agencies’ ability to carry out their missions.

Congress, meanwhile, has shown no interest in checking this administration or taking a more active legislative role in updating laws and setting clear regulatory guidance. It is also attacking agencies by using the Congressional Review Act to reverse regulations, rescinding a $5 cap on most bank fees and oversight for payment technology companies, to cite one recent example. In short, all three branches of the federal government are pushing an unprecedented wave of regulatory and administrative retreat.

Historically, states have stepped up when Washington, D.C., has been unable or unwilling to act. Indeed, we have a rich history of national policies flowing and growing from pioneering initiatives in states. The smaller-scale and more localized demographics of states make them prime laboratories of democracy, where innovative ideas can be tested and refined while momentum builds for national adoption.

We have already seen states proactively responding to significant federal rollbacks. In recent years, many have codified protections for reproductive health after the overturning of Roe v. Wade, as one major example. And many state attorneys general are working hard to challenge and successfully reverse unlawful federal executive actions in court.

While this concept isn’t new, states are not equipped to track and triage the scale of attacks that are now before us. State legislatures generally meet infrequently, there are practical and sometimes legal limits to the number of bills that can be introduced, and the technical expertise and capacity to find and adapt these threatened regulations is limited. State agencies usually face resource challenges of their own when it comes to their regulatory processes. Our tools need to be expanded and refined to meet the moment.

States must transition from reactionary piecemeal legislation toward more comprehensive and systematic protections. One promising solution, which I had the privilege of contributing to through a working group of leading state lawmakers, would establish a framework designed explicitly to combat federal regulatory rollbacks by requiring state agencies to automatically adopt federal standards as a backstop whenever they are repealed or nullified at the national level if they involve health, safety, or general welfare. Initially developed in response to judicial rollbacks such as Loper Bright, this approach has now become critically relevant in the DOGE era.

For example, the Trump administration repealed a Biden executive order laying out standards for the use of artificial intelligence. This repeal would automatically require the appropriate state agency—perhaps an office of information and technology or consumer protection—to immediately adopt those repealed standards at the state level, maintaining regulatory stability. The agency would then conduct an expedited public review to determine if permanently keeping the regulation in effect would be in the best interest of the state’s residents. This removes the need for legislators, governors, or agency leaders to constantly monitor the regulatory landscape and make a judgment call about whether to take action.

It sounds simple, but as with any sweeping policy, there are significant details and nuances that need to be addressed to make such a policy work. The following are some practical and political considerations for state leaders looking to amplify their ability to fight back:

• Focus on fundamentals. We need to understand that “regulation” in the abstract is a four-letter word, and blanket protections for what may be perceived or countered as “red tape” are unlikely to garner significant support among the public or legislators. These efforts should be contextualized around issues that have a direct impact on citizens’ everyday concerns—healthcare, public safety, education, housing, and consumer rights. Point to specific compelling examples and create a policy nexus with regulations that affect the “health, safety, or general welfare” of the state’s residents. Depending on a state’s dynamics, environmental protections may be worth calling out separately or including under the banner of health and safety. 

• Empower the community. When thinking about Loper Bright, it was assumed that federal rollbacks would undergo a formal process with a clear paper trail and notification sufficient to trigger backstop rulemaking at the state level. But the federal chaos of the last few months has shown otherwise. Poor communication, inconsistency, vague executive-order language, legal uncertainty, and the sheer pace of attacks can leave states unsure of where things stand. Additionally, some regulations are not being wholly eliminated but instead dramatically downsized and reoriented to cater to the desires of predatory corporate actors. The best way to ensure that all rollbacks are captured is to create two tracks to initiate a backstop. First, an agency receiving notice of a rescission would be compelled to act. Secondarily, a public petition process could be implemented, whereby any resident could ask relevant state agencies to review a potential federal rollback. Agencies would be required to review these petitions and have a duty to act if it’s determined that a repeal has occurred. This allows community organizations and activists with specialized interest and expertise to proactively bring an issue to a state agency for consideration.  

• Act quickly. Every state’s administrative procedures are different, and agencies may be rightfully concerned about the increased workload they could face in taking on a barrage of rulemaking to codify federal regulations. These circumstances open the opportunity to establish a more streamlined and expedited process, if none exists currently, to alleviate the potential burden. Emergency, temporary regulations mirroring the federal language should be immediately and automatically adopted upon notice or petition of a federal rollback to create stability. A 90-day review would follow, with mandatory public notice and feedback, focused on determining if the regulation protects health, safety, or general welfare. Following this review period, there must be a decision to retain or modify a permanent regulation or to allow the temporary regulation to expire, with a justification in writing.

• Act thoughtfully. There will need to be consideration of thorny issues, key among which are federal preemption of state authority. Take the recent rescission of fees for excessive methane leaks from oil and gas drilling. Here in Nevada, the Division of Minerals can only charge fees established in law; some fees may be up to the discretion of the agency while others are set or capped in statute. An automatic policy might therefore need to provide broader regulatory latitude to agencies—and in the case of adopting fees, channel revenue to a relevant state budget instead of the federal government. But this could trigger secondary political complications—Nevada requires a two-thirds supermajority on any bill raising revenue. As another example, if federal efficiency standards for certain appliances are weakened but not outright eliminated, federal preemption prevents states from stepping in. Screening for conflicts with state or federal law must therefore be considered during initial policy development as well as be part of any regulatory review process.

• Provide a path to the judicial branch. State agency determinations should be subject to judicial review. This provides additional checks and balances if an agency or even an administration is making biased or unreasonable determinations.

This is not an exhaustive list and is focused primarily on implementation considerations. Some elements might be stronger in states that have robust progressive governing majorities or where the goal is to frame the issue, while those with split governance or narrower paths to success may want to consider narrowing the provisions further (perhaps focusing on only one agency or issue, for example). Additional administrative nuance will likely arise and will need to be addressed as these bills are brought forward.

Finally, while establishing automatic backstops to protect the regulatory safety net should be considered a necessity at this point, states can and should explore other entrepreneurial initiatives to fill the federal void. Multistate collaborative agreements could pool resources and develop shared research and technical expertise to inform new regulatory initiatives that were abandoned by the Trump administration. Imagine California, Oregon, Washington, Nevada, and Arizona coordinating and collaborating to conduct and share the science necessary for new environmental standards, or to develop new consumer protections.

States could also come together to assert their authority and highlight federal retreat on key issues, whether it’s the Clean Air Act waiver that allows states to adopt stronger standards, or to tackle issues of regional importance, such as wildfires. Court challenges could expand from fighting illegal federal actions to also assert the rights of states to overcome preemption and fill in the gaps left by the federal government. New interstate compacts, while likely requiring Congressional approval, could even help frame and promote some of these efforts.

In conclusion, the accelerating rollback of federal regulations poses profound risks, and there is currently no federal remedy in sight. States have the authority, necessity, and agility to fill regulatory gaps and uphold standards critical to protecting the well-being of their residents. However, this moment requires states to try bold new solutions. By adopting proactive, comprehensive frameworks and fostering increased subnational collaboration, states can mitigate federal destabilization, create clear contrast with those working to move us backward, and move from a state of reaction and response to one of resilience.