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interpret constitutional and statutory provisions ... .” Roberts noted that the Court ’ s Chevron case law never fully reconciled agency deference and the APA .
Although Loper Bright leaves no doubt that Chevron is overruled , the Court also explained that the opinion does “ not call into question prior cases ” decided under Chevron because the need to adhere to precedent is particularly strong in cases of statutory interpretation .
Chief Justice Roberts noted that statutory stare decisis has “ special force ” and weighs heavily against overturning specific Supreme Court interpretations of statutes , because Congress remains free to amend statutes if it disagrees with Supreme Court interpretations .
Nonetheless , the Supreme Court recognized that Congress could commit certain decisions to agency discretion . In such cases , a reviewing court ’ s role is to consider whether the delegation falls within constitutional limits and “ the outer boundaries ” of the statute and ensure that the agency exercises its discretion consistent with the APA .
From deference to respect
What replaces Chevron deference is for “ courts to do their ordinary job ” of determining the “ best reading ” of the statute using all the traditional tools of statutory interpretation at their disposal . “ Due respect ” to an agency ’ s view remains one such tool .
Reviewing courts should look to pre-Chevron approaches to agency cases , especially the Supreme Court ’ s 1944 opinion Skidmore v . Swift & Co ., which instructed courts to consider the thoroughness , reasoning , and consistency of an agency ’ s view and “ all those factors which give it power to persuade , if lacking power to control .”
The future of agency policymaking
The demise of Chevron is unlikely to lead to a wholesale reconfiguration of existing regulatory regimes , especially considering Chief Justice Roberts ’ pointed warning about statutory stare decisis . However , federal agencies moving forward should be circumspect in their policymaking and think twice before taking actions that read new and expansive regulatory powers into old statutes without clear congressional justification .
When the Supreme Court , in West Virginia v . EPA , vacated EPA ’ s Clean Power Plan because EPA sought to shift grid-wide power generation from dirtier to cleaner emitting sources , the Court issued that warning to agencies with respect to initiatives of major economic or political significance . In Loper Bright , the Court now clarifies that agencies are no longer free to start with the end in mind regardless of the scope of the initiative . Rather , they must look to , first , their authorizing legislation and carry out their missions as Congress defined them .
The Loper Bright decision will , however , have a major effect in litigation over various Biden administration actions , such as those part of the administration ’ s “ whole of government ” approach to addressing climate change ( for example , the Securities and Exchange Commission ’ s climate disclosures rule ) or politically controversial attempts to cancel student loan debt . Such actions may be difficult to defend if they do not fit into the reviewing court ’ s idea of the “ best reading ” of the underlying statute .
In the wake of the Loper Bright decision , the Supreme Court also issued Corner Post Inc . v . Federal Reserve , in which the Court held , that for purposes of the general statute of limitations in 28 U . S . C . § 2401 , an APA claim accrues not when the action is final , but when the action injures a person .
Although some , including Justice Ketanji Brown Jackson , have suggested that Loper Bright and Corner Post signal open season on even well-established agency rules , potential litigants would do well to focus on agency actions justified or upheld under Chevron where the quality of the agency ’ s reasoning or the workability of the rule provide a “ special justification ” for re-litigating the rule beyond Chevron ’ s demise .
About the authors
Brittany Pemberton ( L ), a partner in the Washington , D . C ., office of the Bracewell law firm , advises energy , oil and gas , and industrial clients in environmental regulatory compliance and enforcement matters before the U . S . Environmental Protection Agency ( EPA ) and state agencies . She can be reached at brittany . pemberton @ bracewell . com . Daniel Pope ( R ) is an associate in the firm ’ s Austin office . He advises energy , infrastructure , and industrial clients on environmental permitting and transactions , and represents clients in litigation and environmental enforcement defense under a number of environmental and natural resources statutes and regulatory programs . He can be reached at daniel . pope @ bracewell . com .
This article was first published on Reuters Legal News and Westlaw Today on July 8 , 2024 .
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