U.S. Supreme Court
Understanding Loper: A Sheep in Wolves’ Clothing?
The real world effects may be limited. Or they may undercut presidential power, to the surprise of advocates of the unitary executive.
Because there are so many outstanding questions about the Court’s new approach to judicial review, we won’t know its practical impact for some time. Its symbolic impact as an affirmation of conservative ideology is more obvious.
CONTINUE READINGUnderstanding 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 …
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CONTINUE READINGUnderstanding 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.
CONTINUE READINGUnderstanding 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.
CONTINUE READINGJudicial 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.
CONTINUE READINGIs 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 …
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CONTINUE READINGLosing 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. …
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CONTINUE READINGIs Loper v. Raimondo Really the Power Grab Commentators Assume?
The Supreme Court has already grabbed power from agencies through the major questions doctrine.
Headlines about today’s decision in Loper v Raimondo overturning the 40 year-old decision in Chevron v NRDC that granted agencies deference in their interpretation of ambiguous statutes focus on the “massive power grab,” the decision’s “sweeping” nature and call it a “blow” to the administrative state. My view may be idiosyncratic but I don’t view …
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CONTINUE READINGThe 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 …
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CONTINUE READINGThe 2023 NEPA Rewrite and the Supreme Court’s New Climate Case
NEPA isn’t a common law subject. What the statute says matters more than pre-2023 judicial opinions.
When it amended NEPA in 2023, Congress squarely rejected language that would have constricted the definition of environmental impacts. The Supreme Court needs to give that language full effect, not obsess about the meaning of pre-2023 judicial opinions.The Supreme Court shouldn’t give advocates of narrowing NEPA a victory that they were unable to get through the legislative process.
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