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This edition examines three major developments: the Federal Circuit’s stance on OPM’s overtime rule, DOJ’s rollback of disparate impact liability under Title VI, and EPA’s renewable fuel reallocation plan—all signaling how agencies are recalibrating in the Loper era.


** DOJ Eliminates Disparate-Impact Liability from Title VI Regulations in the Wake of Loper Bright
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AFP’s Liam Childers writes ([link removed]) on Loper’s Role in DOJ’s action on disparate impact:

When the Supreme Court decided Loper Bright Enterprises v. Raimondo ([link removed]) , overturning Chevron deference, it clarified the principle that federal agencies cannot extend their authority beyond what has been clearly authorized by Congress. In declaring that “statutes . . . have a single, best meaning,” the Court made clear that agencies must follow the law as written and not their policy preferences. Over the past year, this clarity has prompted many agencies to scrutinize long-standing policies, even those created before Chevron deference. The Trump Administration has even made such reevaluation a central pillar of its deregulatory agenda, as reflected in Executive Order 14219 ([link removed]) and guidance
([link removed]) from the Office of Management and Budget. The Department of Justice’s (“DOJ”) new Title VI rule ([link removed]) , which eliminates disparate-impact liability, is just one of the clearest and most recent examples of the real impact Loper Bright is having on the American regulatory space.

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** Applying Loper Bright, Federal Circuit Upholds OPM Overtime Rule
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AFP’s Liam Childers writes ([link removed]) on Lesko v. United States ([link removed]) in the Federal Circuit:

AFP Foundation’s Michael Pepson mentioned ([link removed]) Lesko v. United States as a case to watch for understanding how Loper Bright might guide restraint over agency authority without Chevron deference earlier this year. At the time, the Federal Circuit had ordered en banc review to reconsider whether the Court of Federal Claims correctly ([link removed]) upheld the Office of Personnel Management’s (“OPM”) overtime regulations. Last week, the full Circuit ruled in favor of OPM after applying the new Loper Bright paradigm for judicial review ([link removed]) .

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Ultimately, the result in Lesko is quite informative. Ms. Lesko’s claims failed despite Loper Bright and the end of Chevron deference. The court interpreted FEPA without deference for OPM’s position and based on its independent best reading of the statute, upheld the agency’s regulation on delegation grounds. ([link removed])
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** Loper Bright Looms Large in EPA’s Exempted Renewable Fuel Reallocation Plan
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AFP Foundation’s Ryan Mulvey writes ([link removed]) on a recent EPA proposed rulemaking:

Earlier this month, a group ([link removed]) of Republican U.S. Senators, led by Ted Cruz (Texas) and Mike Lee (Utah), sent a letter ([link removed]) to the Environmental Protection Agency (“EPA”) discouraging the agency from moving forward with a proposal to reallocate exempted renewable volume obligations pursuant to the agency’s Renewal Fuel Standard program. Loper Bright figured prominently in the coalition letter and, specifically, the legislators’ argument that Congress’s failure to authorize such reallocation by statute deprived the EPA of authority to do so in the face of statutory silence.

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The Cruz-Lee letter starts by highlighting the potential cost-impact for any level of reallocation, although it emphasizes that “smaller market and independent refiners” are likely to be hit hardest. The letter is even more noteworthy for its references to Chevron deference and Loper Bright. In itshttps://www.cruz.senate.gov/newsroom/press-releases/sens-cruz-lee-colleagues-call-on-epa-to-halt-changes-increasing-refinery-compliance-costs2022 Renewal Fuel Standard rule ([link removed]) , t ([link removed]) he EPA explicitly noted its authority for reallocation was based on its “reasonable” construction of the Clean Air Act, which was only defensible under Chevron’s judicial-deference regime: “[W]hile the statute does not specifically require EPA to redistribute exempted volumes . . . this is a reasonable
interpretation of our authority under Chevron.”
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