A rule’s survival odds belong in the compliance plan
West Virginia v. EPA gave courts a named test for striking ambitious rules. That made durability something agencies and the organizations they regulate had to estimate: in how new rules are written, in how existing programs are defended, and in how compliance money is sequenced.
Looking Back revisits one week at a time, from January 2020 to today, and asks what it meant for the banks, health systems and public agencies we serve. The series was written in 2026, with the benefit of hindsight, and each article says which week it looks back on.
The week
On June 30, 2022, the Supreme Court decided West Virginia v. Environmental Protection Agency, ruling 6 to 3 that the EPA lacked clear congressional authority to require the shift in power generation contemplated by the Obama-era Clean Power Plan. The majority opinion expressly relied on the major questions doctrine: when an agency claims power to make decisions of vast economic and political significance, it must point to clear authorization from Congress. The rule at issue had never taken effect, yet the reasoning applied to any agency reading older statutes to address new problems. The decision came as the Court’s term ended, while several agencies, including financial regulators, had ambitious rulemakings underway on subjects such as climate risk disclosure and cybersecurity.
Most analysis of the decision concerned energy policy. For agency program directors and the compliance leaders of regulated institutions, the lasting effect was on planning. Courts now had a named test, invoked in a majority opinion, for setting aside rules that rest on broad readings of general statutory language. A rule that might be vacated three years after adoption is a different commitment from one that will stand. That holds for the agency that writes it, the systems built to administer it, and the institutions that must comply. Durability turned into a number to estimate rather than an assumption.
The effect falls on three separate decisions, each owned by different people: how agencies write new rules, how agencies protect programs built on older interpretations, and how regulated organizations sequence the money they spend on compliance.
Writing new rules
For agencies, the decision raised the value of a clear statutory hook. A rule grounded in specific congressional language is harder to challenge than one resting on general authority over a problem Congress never named. An administrative record that shows how the agency’s approach follows from that language strengthens it further. Agency counsel had long reasoned this way. The decision made the stakes explicit and gave challengers a ready argument.
It also raised the value of scope discipline. A narrower rule that clearly fits the statute may achieve less on paper and more in practice, because it survives. Program directors have to weigh ambition against durability and plan for litigation as a normal stage of rulemaking. That means building the record as if a skeptical court will read it, including the agency’s reasons for rejecting narrower alternatives.
Technology plans inside agencies should follow the legal calendar. A new rule often needs a reporting portal, new data collections, case management changes and staff training. Building all of it before the rule clears its first legal challenge risks stranding the investment. Phasing the build, with design and prototyping early and full production after the main legal milestones, limits the loss if the rule falls. The trade-off is a slower start if the rule survives, which agencies can reduce by keeping designs ready to execute.
Protecting existing programs
The second decision concerns programs already running. Many agency programs rest on long-standing interpretations of statutes written before today’s technology and markets existed. The doctrine invited challenges to those interpretations where the economic stakes are high.
A portfolio review is the practical response. List the agency’s major programs and rules, record the legal basis for each, and flag those that depend on interpretive reach rather than explicit text. For each flagged item, estimate what a successful challenge would disrupt: payments, enforcement cases, data flows, contracts or the work of other agencies that rely on it.
The review does not mean abandoning programs. It supports contingency planning. If a reporting requirement could be vacated, the agency should know whether it could still collect the data voluntarily or under another authority. If a grant condition could fall, it should know which grantees depend on it. Where the gap is serious, the review gives agency leadership a documented basis for seeking clearer authority from Congress.
This work needs people who can translate legal risk into program and system terms. Few agencies had that role defined in 2022. Pairing general counsel staff with program and technology leads for each flagged program is a simple way to build it.
The same review helps with a less visible risk. Other agencies, states and contractors often build their own systems around a federal program’s data or definitions. If the program’s legal basis falls, their systems are stranded too. Telling those dependents which programs are flagged, and keeping them informed as litigation develops, is cheaper than a sudden shutdown that breaks processes the agency does not control.
Sequencing compliance spending
The third decision belongs to banks, health systems, contractors and other regulated organizations. The doctrine changed how to read a proposed or new rule. The question was no longer only what the rule required and when, but how likely it was to be challenged, on what grounds, and how long the challenge might take.
That did not justify ignoring new rules. It justified sorting their requirements into two kinds. No-regret work is valuable regardless of the rule’s fate: better data governance, clearer incident processes, stronger documentation, cleaner inventories of systems and vendors. That work can start early. Rule-specific work only pays off if the rule survives: new reporting systems for particular data elements, specialized calculations, attestations in a prescribed format. That work can be designed early and built once the legal path is clearer.
The sequencing has limits. If a compliance date arrives before litigation is resolved, the institution must be ready to comply, because a pending challenge is not a stay. Planning should therefore track three dates for any significant rule: its compliance date, the expected timing of legal rulings, and the lead time needed to build what it requires. When those dates collide, the institution needs a decision, made with counsel, about how much to build in advance.
Compliance teams that tracked litigation alongside rulemaking, and reported both to the board, could make that call with evidence. Organizations should check with counsel on how pending challenges should affect compliance timelines for specific rules.
With hindsight
The doctrine turned out to be one step in a larger shift. In June 2024, in Loper Bright Enterprises v. Raimondo, the Court overruled the Chevron doctrine, ending judicial deference to reasonable agency interpretations of ambiguous statutes. Days later, Corner Post v. Board of Governors allowed parties newly affected by older rules to challenge them. Several prominent rules from this period were stayed, vacated or abandoned. The SEC’s climate disclosure rule, adopted in March 2024, was stayed pending litigation, and in March 2025 the Commission voted to stop defending it. Changes of administration added a second source of instability, as agencies reconsidered rules adopted by their predecessors. By 2026, agencies and regulated organizations both treat legal and political durability as standard planning inputs. Institutions that separated no-regret work from rule-specific builds have spent less on systems for rules that never took effect.