Understanding Loper: The Grandfather Clause

Hundreds of past federal cases relied on Chevron. They remain good law.

To cushion the shock of abandoning Chevron, the Supreme Court created a safe harbor for past judicial decisions. This was well-advised. The Court itself applied Chevron at least seventy times, as did thousands of lower court decisions. The key question will be the scope of the grandfather clause. The Court’s discussion began by saying that …


Understanding Loper: The Primacy of Skidmore

A previously obscure 1944 case will now be central to judicial review.

Some commentators have tended to write off Skidmore and assume that judges will ignore agency views after Loper Bright. That is a misreading of the Court’s opinions in Loper and in Skidmore itself.


Understanding Loper: Delegation & Discretion

Something similar to Chevron deference may still apply to many (most?) regulations.

The Supreme Court took away Chevron deference, but it also recognized that Congress can give agencies the power to clarify statutes and fill in gaps.


Playing fast and loose with reality

How the US Supreme Court’s recent decisions enable greater reliance on “alternative” facts

As the U.S. Supreme Court has moved into an era of second-guessing federal administrative agencies to an extent that we have not seen in 80 years, it has delivered yet another blow to reliance on accurate facts. When I served as an administrative law judge for California’s state utility regulators, my job in each proceeding …


Judicial Review After Loper Bright

We used to have the Chevron test? What test do we have now?

Loper Bright has created a new two-part test for courts to apply when an agency has interpreted a statute. It’s not the same as Chevron, but it does have some family resemblance.


Is the Sky Falling? Chevron, Loper Bright, and Judicial Deference

Perplexed? Worried? Here’s a guide to a fraught area of law.

If you’re confused about the Supreme Court’s ruling, you’re not alone. Scholars will be discussing the recent ruling for years. It clearly will limit the leeway that agencies have to interpret statutes, meaning less flexibility to deal with new problems. But unlike many commentators, I don’t think the sky is falling. I was teaching environmental …


Losing Chevron: What Does It Mean for California?

The Supreme Court’s decision in Loper Bright will not necessarily impact how California courts review our state agency determinations. But we’ll feel it in other ways.

A question I’ve been getting a lot since the Supreme Court overturned the Chevron doctrine is: “What does this decision mean for California?” Here are three takeaways about how the Golden State is likely—or not—to be impacted at first blush. First, the decision does have the potential to impact California directly in some pending litigation. …


Grid Experts Weigh in on EPA’s Good Neighbor Plan for NOx

UCLA Emmett Institute faculty submit amicus brief in Utah v. EPA, a major ozone case, on behalf of some of the nation’s leading grid experts.

Last year, EPA issued a new federal implementation plan to address interstate pollution from nitrous oxides under the Clean Air Act’s Good Neighbor Provision. The Good Neighbor Provision is designed to address interstate pollution: those instances where emissions from upwind states impose harms across state lines, effectively shifting the costs of controlling their pollution to …


The Supreme Court & Interstate Pollution

It was puzzling that the Court agreed to hear the case. How has it ruled? And why?

Months ago, the 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 …


The Hawai’i Youth Climate Settlement

Thirteen youth plaintiffs secured a court-enforced agreement to decarbonize the state’s transportation system without even setting foot in a courtroom.

At the precise time on Monday, June 24 when 13 young Hawaiians were set to file into a Honolulu court for the start of trial, they instead gathered at the historic Iolani Palace to celebrate with their legal teams and supporters. Their case, Navahine v. Hawaiʻi Department of Transportation, was the latest youth climate lawsuit …