In our last newsletter, we wrote about the battle over the Council on Environmental Quality’s authority to implement the National Environmental Policy Act (NEPA). Now, the Supreme Court has weighed in on the judicial review of NEPA analyses.

The Supreme Court Provides Guidance on How Loper Bright and State Farm Review Coexist

AFP Foundation’s Michael Pepson on Seven County Infrastructure Coalition v. Eagle County, Colorado, where the Supreme Court addressed the scope of federal agencies’ obligations under the National Environmental Policy Act to study the environmental effects of proposed agency actions and prepare “detailed” reports, known as environmental impact statements:

In the course of grappling with those questions, Justice Kavanaugh’s Seven County opinion may provide some insight into how under Loper Bright the Court may distinguish between questions of law that courts must independently decide and exercises of agency discretion subject to laxer arbitrary and capricious review.

Seven County cited Loper Bright for the proposition that “[a]s a general matter, when an agency interprets a statute, judicial review of the agency’s interpretation is de novo.” This appears to be the first time the Supreme Court has expressly tied Loper Bright to de novo review in the body of a majority opinion. (The Loper Bright majority opinion referenced the word de novo only once—in a footnote responding to Justice Kagan’s dissent.) Conversely, the Court observed that “when an agency exercises discretion granted by a statute” the APA’s “deferential arbitrary-and-capricious standard” usually applies, which “asks not whether [a court] agrees with the agency decision, but rather only whether the agency action was reasonable and reasonably explained,” citing State Farm and FCC v. Prometheus. This distinction seems to track Loper Bright’s recognition that some statutes are best read to grant discretionary authority to agencies and how courts should review agency exercises of discretion. It is also consistent with then-Judge Kavanaugh’s observation in his 2016 article “Fixing Statutory Interpretation” that “a judge can engage in appropriately rigorous scrutiny of an agency’s statutory interpretation and simultaneously be very deferential to an agency’s policy choices within the discretion granted to it by the statute.”  

AFP Foundation Responds to Brookings Institution Commentary on Loper

Last week, the Brookings Institution published a commentary piece from Frank J. Thompson, Distinguished Professor of Public Affairs Emeritus & Faculty Director at Rutgers University, arguing that “[t]he Supreme Court’s overturning of the Chevron doctrine may unintentionally weaken Trump’s ability to govern unilaterally by empowering lower courts—often selected through strategic forum shopping by his opponents—to more freely block his executive actions.”

AFP Foundation’s Michael Pepson writes that Thompson’s piece “somewhat misunderstands the intent and meaning of Loper Bright overruling Chevron. Loper Bright is about principle and process—how public policy choices should be made and by whom: the Executive Branch going it alone or Congress through duly enacted legislation? The whole point of repudiating Chevron’s fiction that statutory ambiguity or silence transferred to the Executive Branch power to make policy choices announced in legislative rules with the same force as statutes is to put that power back where the Constitution put it, vesting all legislative power in Congress, subject to constitutional limits on federal power.  

The Brookings article also suggests that “[i]n the absence of Chevron’s ‘disciplining effect’ on the decisions of lower court judges, the policy preferences of” judges adjudicating challenges to Executive Branch actions “will likely become more important.” But a faithful reading of Loper Bright does not authorize federal judges to decide cases based on their policy preferences or supposed ideology. Loper Bright specifically instructed courts on what they must do to “stay out of discretionary policymaking left to the political branches” when interpreting statutes. Loper Bright tasks judges with neutrally finding a statute’s single best meaning using standard tools of statutory interpretation.

Loper Bright and Political Questions

The Court of International Trade recently invalidated President Trump’s tariffs under the International Emergency Economic Powers Act of 1977 (“IEEPA”).  The government argued, among other things, that the court could not consider the case because of the political question doctrine.

One reason that doctrine may apply is due to “a lack of judicially discoverable and manageable standards for resolving” the case.  The court rejected that as a basis not to hear the case by relying on Loper Bright.

Quick Hits

• Bloomberg Law’s UnCommon Law podcast continues its series on the “story behind the fishing industry’s Chevron doctrine challenge.” The latest episode focuses on “the Supreme Court arguments that overturned Chevron.”

  • “In part two of our episode on Loper Bright, the high court ostensibly considers the plight of the herring fishermen, but actually looks to decide whether to abandon the Chevron doctrine once and for all.”

• A new University of Michigan Law Review article from University of Arizona’s Shalev Gad Roisman and Oren Tamir does book review of how Loper, and other new administrative law cases, are being treated in casebooks. They argue:

  • “[T]hat the supplements and casebooks do not yet do a sufficiently good job of enabling administrative lawyers to imagine a new and different administrative law future, a future that lies beyond either the Roberts Court Revolution or what preceded it.”