What Does Loper Bright Enterprise v. Raimondo Mean To Future Regulatory Action?
By Brian Hendrix
Did you see the news about Chevron and Loper Bright? “Supreme Court takes a sledgehammer to federal agency power!” Court’s decision to overrule Chevron will “paralyze federal agencies” and generate a “tsunami of lawsuits!”
To borrow a phrase, “big, if true.” Unfortunately (or fortunately, depending on your politics), the reality isn’t nearly as exciting as the headlines. That shouldn’t come as a surprise given that the topic is administrative law.
Administrative law is like geology. Necessary, sure, but interesting? Only to geologists. Fast paced, dynamic? Hardly. Geologists measure time in eons, eras and periods, not years, decades or even centuries. Compared to geologic time, government time is fast.
(Comparing geology to the law is a bit low, but I mean no offense to either the subject or to geologists. My father was a geologist. Plus, like I said, geologists really are necessary.)
But Back to Chevron
On June 28, in Loper Bright Enterprise v. Raimondo, the Supreme Court overruled Chevron. That’s significant. Change is most definitely in the air.
What is (or, more accurately, was) Chevron? Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. is a 1984 Supreme Court decision that obligated courts to defer to federal agencies’ interpretations of ambiguous or unclear statutes, as long as the interpretation was reasonable.
If you challenged an agency’s interpretation of a statute, you expected the agency to argue statute was ambiguous, the agency’s interpretation was reasonable and, as a result, the court must defer to the agency’s interpretation. By training and innate ability (or some flaw or defect in our character), attorneys are adept at finding the ambiguity in everything, everywhere and on command (though not for free).
For the government, ambiguity was almost always the winning ticket. Under Chevron, a courts’ evaluation or assessment of the reasonableness of an agency’s interpretation was “highly deferential.” If the agency’s interpretation was a “permissible construction of the statute and not manifestly contrary to it,” the agency won. If there were other reasonable interpretations or if another interpretation was clearly more reasonable, the agency won.
In 1984, Chevron wasn’t initially recognized as a landmark decision, but that’s what it became. Over the next 40 years, it played a key role in defining the relationship between the judiciary and the executive branch (i.e., administrative agencies like MSHA). Chevron became the big red Easy Button that, too often, agencies would point to and courts would hit, deciding case after case in favor of the government.
Back in 2016
Justice Gorsuch (then a judge on the 10th Circuit), explained that Chevron “permit[ed] executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution.” As such, “[C]ourts are not fulfilling their duty to interpret the law and declare invalid agency actions inconsistent with those interpretations . . . [This] is a problem for the people whose liberties may now be impaired not by an independent decisionmaker seeking to declare the law’s meaning as fairly as possible – the decisionmaker promised to them by law – but by an avowedly politicized administrative agent seeking to pursue whatever policy whim may rule the day.”
It took eight years, but in Loper Bright, a majority of the Supreme Court agreed. The Court held the “deference that Chevron requires of courts reviewing agency action cannot be squared with the [Administrative Procedure Act].” The “APA means what it says.”
It “codifies for agency cases the unremarkable, yet elemental proposition . . . that courts decide legal questions by applying their own judgment. It specifies that courts, not agencies, will decide ‘all relevant questions of law’ arising on review of agency action . . . even those involving ambiguous laws—and set aside any such action inconsistent with the law as they interpret it. And it prescribes no deferential standard for courts to employ in answering those legal questions.”
For its part, the government (and the dissenting justices) argued in part that “Congress must generally intend for agencies to resolve statutory ambiguities because agencies have subject matter expertise.” Writing for the majority, Chief Justice Roberts flatly rejected this argument, explaining that “most fundamentally, Chevron’s presumption is misguided because agencies have no special competence in resolving statutory ambiguities. Courts do.”
Put Differently
The Court made it clear that it will not defer to an agency’s interpretation, but it will, where appropriate, respect it. As Professor Jonathan Adler has explained it, Loper Bright, “standing alone, will not tame the administrative state, but it may give Congress greater incentive to revisit existing statutory authorities and ensure that agencies have the authority they need to do the things Congress would like them to do.”
Taming the administrative state is no small project. Professor Adler sees this “the shift from deference to respect” as “less a revolution than a modest course correction.”
I hope that it is something more than that. Loper Bright was one of three decisions this term that address the authority of the administrative state. In next month’s column, I’ll walk us through the other two decisions and explain what Loper Bright may mean for MSHA and the mining industry.
Brian Hendrix is a partner at Husch Blackwell LLP. As a member of the Energy & Natural Resources group, he advises clients on environmental, health and safety law, with a focus on litigation, incident investigations, enforcement defense and regulatory compliance counseling. He can be reached at
[email protected].