The Loper Bright developments came from a variety of places over the past two weeks with important opinions from the Federal Circuit and Court of Federal Claims, the EPA’s announcement that it will reconsider its 2009 Endangerment Finding, and a new article from Professors Hickman and Wildermuth.

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EPA’s Announcement That it Will Reconsider Endangerment Finding Cites Landmark Loper Bright Decision

AFP Foundation’s Michael Pepson writes:

“The EPA recently announced that it will formally reconsider its that it will formally reconsider its 2009 Endangerment Finding in which it deemed carbon dioxide, methane, and four other gases as ‘air pollutants,’ as well as “all of its prior regulations and actions that rely on the Endangerment Finding.” That is a big deal because the Endangerment Finding has been used to justify ‘seven vehicle regulations with an aggregate cost of more than one trillion dollars” and “has also played a significant role in EPA’s justification of regulations of other sources beyond cars and trucks,’ such as power plants.”

“But like many such consequential matters, EPA’s reconsideration of Endangerment Finding turns, in part, on questions of statutory interpretation. And as EPA’s announcement notes, after the agency issued the Endangerment Finding in 2009, ‘major Supreme Court decisions in the intervening years, including Loper Bright Enterprises v. Raimondo . . . have provided new guidance on how the agency should interpret statutes to discern Congressional intent and ensure that its regulations follow the law.’”

Federal Circuit Orders En Banc Review of Loper Bright’s Impact on OPM Regulation

AFP Foundation’s Michael Pepson explains:

“Last fall, Lesko v. United States—an appeal of a decision from the Court of Federal Claims about an Office of Personnel Management (“OPM”) regulation—was argued before a panel of the U.S. Court of Appeals for the Federal Circuit.  This week, however, following a sua sponte poll of the Circuit’s full bench, the court ordered the appeal to be heard en banc, directed the parties to file new briefs, and invited amicus involvement.  The Circuit has instructed the renewed briefing to address the specific impact of the Supreme Court’s landmark decision in Loper Bright Enterprises v. Raimondo overruling the forty-year-old Chevron doctrine, which required federal courts to defer to federal agencies’ views on what the law is under certain circumstances.

…

Specifically, the Federal Circuit has requested briefing on the following questions:  

• Considering Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), how should “officially ordered or approved” in 5 U.S.C. § 5542(a) be interpreted?

• Is this a case in which “the agency is authorized to exercise a degree of discretion” such that OPM has authority to adopt its writing requirement? Loper, 603 U.S. at 394.

• Is there a statutory provision (e.g., 5 U.S.C. §§ 1104, 5548) that provides such authority?

The Court also invited amicus participation to assist in resolving those questions.”

Quick Hits

• Professors Kristin Hickman and Amy Wildermuth have a new article on Loper’s two buckets: “independent judgment for mere statutory interpretation and reasoned decisionmaking for exercises of delegated policymaking discretion.”

  • Access the paper on SSRN.

  
  

• The Bipartisan Policy Center is hosting an event this week on “Legislating After Loper” will discuss how the Loper and other court decisions “pose challenges for Congress in how it legislates and directs regulatory agencies.

  • Details: March 27, 2025 from 9:30 am to 10:30 am EDT. Register here.

  
  

• Ryan Mulvey, Policy Counsel for Americans for Prosperity Foundation, joins American Potential host David From to discuss efforts to rein in the administrative state and ensure that federal agencies stay within their constitutional limits.