The Supreme Court’s decision in Loper Bright continues to reverberate across the legal landscape.  This month’s newsletter highlights three major decisions applying Loper Bright—Corner Post on remand, media ownership rules, and EEOC regulations.

Judge Bumatay’s Powerful Warning in Lopez v. Bondi on Loper Bright Implementation, Skidmore Deference, and Stare Decisis

AFP Foundation’s Michael Pepson on Judge Bumatay’s dissent the Ninth’s Circuit’s denial of rehearing of a panel decision in Loper v. Bondi:

While Lopez is ostensibly an immigration dispute, it may have much broader administrative law implications because of how the panel majority applied Loper Bright to the specific statutory interpretation questions at issue in that case. As Judge Bumatay put it: “This case is of rare importance. As the first to interpret Loper Bright in the immigration context, Lopez will govern hundreds of cases on the Ninth Circuit’s docket. But even more, this case will infect other areas of law—no doubt spreading to our broader administrative-law jurisprudence.” Underscoring the significance of the panel’s misapplication of Loper Bright, Professors Michael Kagan and Christopher Walker filed an amicus brief in support of rehearing en banc (which Judge Bumatay cites).

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For those who are interested the debate over Loper Bright’s impact on statutory interpretation, administrative law, and the power relationship between courts and agencies, Judge Bumatay’s thoughtful dissent from denial of rehearing en banc in Lopez is worth reading.

D.C. Circuit Accepts FERC Regulatory Interpretation Previously Upheld under Chevron Step-Two

AFP Foundation’s Ryan Mulvey writes:

In a long-awaited remand decision, the D.C. Circuit in Solar Energy Industries Ass’n v. Federal Energy Regulatory Commission upheld FERC’s regulatory interpretation of the Public Utility Regulatory Policies Act (“PURPA”).  The Circuit previously sided with FERC last year when it concluded the agency’s position was “reasonable” under Chevron Step Two, in light of supposed statutory ambiguity.  This week’s decision comes after the Supreme Court’s landmark overruling of Chevron in Loper Bright Enterprises v. Raimondo.  Yet despite the end of Chevron deference, the Circuit still concluded that FERC’s reading of the law reflected “the best view of the statute.”

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On remand, under the new Loper Bright paradigm, the Circuit reiterated that FERC’s interpretation is the “best,” even without the benefit of Chevron deference.  It reached this conclusion based on a common-sense reading of the law, which centered on Congress’s facility-focused design of the statute, as well as its ultimate legislative purpose:

As the Court explained, “[t]he best reading of ‘power production capacity’ of the facility refers to the amount of grid-usable electricity that it produces, in line with the statutory goal of regulating the regulations between power generators and the utilities they supply.”

Eighth Circuit Decision Striking Down Biden EV Subsidy Highlights Loper Bright’s Impact

In Iowa v. Wright, the Eighth Circuit vacated an April 2024 Department of Energy regulation changing how it calculated the “petroleum equivalency factor” used to determine how car and truck manufacturers can use electric vehicles to comply with Corporate Average Fuel Economy standards set by the National Highway Traffic Safety Administration. Michael Pepson writes:

Two months after DOE issued the challenged regulation, the Supreme Court issued Loper Bright overruling the Chevron doctrine, which required courts to defer to agency statutory interpretations under certain circumstances. The Eight Circuit panel ruled that “the fuel content factor exceeds DOE’s authority under the substantive statute,” citing Loper Bright repeatedly in that portion of the opinion.  Several states and the American Free Enterprise Chamber of Commerce brought the challenge. 

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The panel emphasized Loper Bright’s core holding that the APA requires courts to independently interpret statutes without deferring to agencies. At the same time, the panel quoted Loper Bright for the proposition that “this court may ‘seek aid from the interpretations of those responsible for implementing particular statutes.’ ‘In the construction of a doubtful and ambiguous law, the contemporaneous construction of those who were called upon to act under the law, and were appointed to carry its provisions into effect, is entitled to very great respect.’” Indeed, after Loper Bright, the idea that an agency’s contemporaneous and longstanding interpretation of a statute may be probative of its best reading seems to be a recurring theme in recent decisions.

Quick Hits

• Pacific Legal Foundation Launches Nondelegation Project

  • Pacific Legal Foundation launched a new tool that “uses artificial intelligence to trace every federal regulation back to the law that supposedly authorizes it.”

• Senator Eric Schmitt Questions Third Circuit Nominee on Loper Impact

  • During a September 4th Senate Judiciary hearing on nominations, Senator Eric Schmitt (R-MO) questioned nominee to be United States Circuit Judge for the Third Circuit Jennifer L. Mascott on the impact of the Loper Bright decision. Video starting at 1:51:26 here.