Pacific Legal Foundation Writers Assess the Impact of VanDerStock

Pacific Legal Foundation’s Will Yeatman and Charles Yates write in Notice & Comment about how Bondi v. VanDerStok “has the potential to dent the arc of administrative law. As Justice Alito observed in his dissent, the case could end up being ‘a huge boon for the administrative state.’”

Following Loper Bright, the Justice Department started probing the viability of alternatives to the Chevron doctrine. For example, since Loper Bright, the government has reframed questions of statutory interpretation as policy decisions subject to deferential “arbitrary and capricious” review.

The Salerno standard is another Chevron replacement that has been shopped by the government in the wake of Loper Bright. For example, last year in a challenge brought by Pacific Legal Foundation (where we work) to a 2023 Environmental Protection Agency and Department of the Army Clean Water Act regulation, the Justice Department invoked the “no set of circumstances”standard as a reason for that challenge to fail. Of course, the Salerno approach is unique among these Chevron substitutes, in that the “no set of circumstances” framework is far more favorable to the government than even Chevron ever was.