This post was originally published on Legal Planet. Reprinted with permission.
One thing about the Loper Bright decision is obvious: it overruled Chevron. So much for past law. What about the future? How should courts review agency regulations now that Chevron is gone?
This post tackles a key paragraph in the Loper opinion where the U.S. Supreme Court discusses congressional delegation of authority to agencies. The Court discusses three types of statutes, and it will be crucial for judges in future cases to identify which type is present.
The first type involves legislative grants of definitional powers. Many of these should be relatively easy to identify. The examples that the Court gives actually involve the use of the word “define,” although presumably closely related terms such delimit, describe, or interpret would also work.
One trickier issue may involve grants of general rulemaking power. For instance, the Clean Air Act authorizes the EPA Administrator “to prescribe such regulations as are necessary to carry out his functions under this chapter.” Defining statutory terms seems reasonably necessary to carrying out EPA’s responsibilities. It’s not clear, however, whether this would be considered explicit enough to qualify for category 1.
The second category involves laws giving agencies the power to issue rules “to fill up the details” of a statutory scheme. For instance, many provisions of the Clean Air Act grant explicit rulemaking powers to EPA. Moreover, as noted above, the statute also contains a general grant of rulemaking power.
In defining category 2, the Court refers to “carrying out the details” of a law. It quotes that phrase from a case involving Congress’s delegation of power to the courts to make procedural rules a general grant of rulemaking authority to carry out EPA’s functions. The major questions doctrine seems to be built into this category: a major question seems to be the opposite of “filling in the details.” Only non-major questions get category 2 treatment.
Category 3 contains laws using broad terms which leave agencies with flexibility. The Court cites a previous case where EPA could take certain actions if found them to be “appropriate and necessary.” A footnote then gives an example of a statute authorizing EPA to issue certain rules that it finds to be necessary to protect public health and public water supplies.
Once a court decides that a regulation fits into one of these three categories, the court’s job is to be sure that the discretion was exercised within the limits granted by Congress and that the agency gave a reasoned explanation of how it exercised the discretion. The court is supposed to make an independent assessment of whether those requirements were met.
The main difference between this test and Chevron is that Loper calls for a more focused analysis into just what authority was delegated to the agency. Also, instead of saying that the court is deferring to the agency’s interpretation of the statute, the court will say that it is making an independent assessment of whether the agency’s rule was within the scope of discretion allowed by the statute.
This approach could end up looking more than a little like Chevron in practice, but that will depend on how generously courts define the categories and how much statutory discretion they find for agencies to clarify statutes and fill gaps. Overruling Chevron may make courts more interventionist, but Loper gives agencies room for arguing their cases.
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Daniel Farber | July 8, 2024
One thing about the Loper Bright decision is obvious: it overruled Chevron. So much for past law. What about the future? How should courts review agency regulations now that Chevron is gone? This post tackles a key paragraph in the Loper opinion where the U.S. Supreme Court discusses congressional delegation of authority to agencies. The Court discusses three types of statutes, and it will be crucial for judges in future cases to identify which type is present.
William Funk | July 2, 2024
I am appalled by U.S. Supreme Court Chief Justice John Roberts’ opinion in SEC v. Jarkesy because it is so dishonest in its use of precedent. Put aside for the moment whether fraud under the Securities and Exchange Commission’s (SEC) statutes is the equivalent of common law fraud, despite the clear differences between the two. The Chief Justice’s description of the law regarding “public” versus “private” rights as a basis for placing enforcement actions in an agency rather than a court is itself a fraud.
Robin Kundis Craig | July 1, 2024
The Supreme Court's decision in Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce means that federal courts will have the final say on what an ambiguous federal statute means. What’s not clear is whether most courts will still listen to expert federal agencies in determining which interpretations make the most sense.
James Goodwin | July 1, 2024
The U.S. administrative state does not merely protect Americans against those threats that we are unable to protect ourselves from on our own. It is essential to a healthy economy, it provides a crucial platform for democratic self-government, and it functions as a great social equalizer. All of this is now at risk after the U.S. Supreme Court’s conservatives issued four separate decisions largely along ideological lines aimed at eviscerating this crucial institution. The administrative state has been built over the course of nearly 250 years, slowly and pragmatically, since the founding; it has taken just three decision days for the Court to undo much of that work.
James Goodwin | June 28, 2024
The American public is lucky to have the federal administrative state. Every day, it protects all of us from harms like heavily polluted air, consistently contaminated drinking water, and dangerous workplaces. It strengthens our democracy. And it ensures a fairer, healthier, and more inclusive economy. The good news is that the self-aggrandizing U.S. Supreme Court decision in Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce does not change that. And that is because it cannot change that.
James Goodwin | June 27, 2024
Earlier this week, the conservative House Republican Study Committee (RSC) issued a memo on how the party’s lawmakers should respond to the U.S. Supreme Court’s pending decisions in a pair of cases called Loper Bright v. Raimondo and Relentless v. Department of Commerce. In these cases, the Court is considering whether to overturn a 40-year-old legal doctrine called Chevron deference, which guides reviewing courts to defer to agencies’ reasonable interpretations of their statutory authority when relevant provisions are unclear.
Daniel Farber | June 27, 2024
Months ago, the U.S. Supreme Court agreed to hear an “emergency” request to stay EPA’s new rule regulating interstate air pollution. Like most observers, I was puzzled that the Court was bothering with the case before the D.C. Circuit even had a chance to consider the merits of the challenges. Months later, the Court has finally granted the stay, over a strong dissent from Justice Barrett. EPA may be able to fix the problem with this rule very quickly, and the opinion — at least on first reading — doesn’t seem to carry broad implications for other environmental litigation.
Daniel Farber | June 25, 2024
The U.S. Supreme Court agreed June 24 to hear a case about whether environmental impact statements need to address climate change. To read the arguments made about the case, you’d think that this was a common law area where courts establish the rules. But as I discuss in a forthcoming article, recent amendments have put a lot of flesh on the previously barebones law. The bottom line: The Supreme Court shouldn’t give advocates of narrowing the National Environmental Policy Act (NEPA) a victory that they were unable to get through the legislative process.
Sophie Loeb | June 20, 2024
Duke Energy, North Carolina’s monopoly electricity provider, is currently undergoing one of the largest utility-led fossil fuel expansions in the entire country. Though the corporation publicly touts its carbon reduction climate goals, its investments in natural gas are leading to burning a “super pollutant” gas – methane – that is 86 times more harmful than carbon dioxide at trapping heat and warming the environment.