Ryan Mulvey on Loper’s Impact on Rulemaking

AFP Foundation’s Ryan Mulvey in RealClearPolicy on how “Loper Bright has proven more immediately transformative for the executive branch — and it may still force Congress to confront responsibilities it has long avoided”:

In practice, agencies are increasingly approaching rulemaking with an eye toward whether their interpretations can survive independent judicial review as the best reading of the law. That shift affects not only litigation risk, but how agencies evaluate proposed regulations before they are issued, with greater emphasis on statutory text and less reliance on judicial deference as a backstop. The administration claimed it finalized 646 deregulatory actions in 2025. But after including guidance documents published in the Federal Register and proposed rulemakings, the total to date appears closer to 1,500.

The stakes of this shift are already visible in major regulatory disputes. Consider the EPA’s decision to rescind its 2009 greenhouse gas endangerment finding. The administration says the rescission will produce substantial economic benefits; critics argue it undermines federal climate policy. Public debate around that decision has centered on Loper Bright. When Rep. Rosa DeLauro recently questioned EPA Administrator Lee Zeldin’s interpretation of the Clean Air Act, Zeldin responded by invoking the Supreme Court’s insistence that agencies adhere to the best reading of the laws they administer.