ANALYSIS: Notice & Comment Can Hint at Major Questions Suits

The major questions doctrine is increasingly being relied on by litigants to challenge federal agency actions. Following the 2021 explosion of major questions citations in federal complaints, parties are now raising major questions challenges in the rulemaking process before the applicable regulations are even final.

Major questions disputes at the notice and comment stage of the rulemaking process can hint at future challenges in court. Arguments both for and against the application of the doctrine could be picked up by litigants and judges in an eventual court battle. It’s an interesting avenue for potential future litigants, or parties with similar ...