Posts by James Valvo
Federal Circuit Orders En Banc Review of Loper Bright’s Impact on OPM Regulation
Last fall, Lesko v. United States—an appeal of a decision from the Court of Federal Claims about an Office of Personnel Management (“OPM”) regulation—was argued before a panel of the U.S. Court of Appeals for the Federal Circuit. This week, however, following a sua sponte poll of the Circuit’s full bench, the court ordered the…
Read MoreEPA’s Announcement That it Will Reconsider Endangerment Finding Cites Landmark Loper Bright Decision
The EPA recently announced that it will formally reconsider its 2009 Endangerment Finding in which it deemed carbon dioxide, methane, and four other gases as “air pollutants,” as well as “all of its prior regulations and actions that rely on the Endangerment Finding.” That is a big deal because the Endangerment Finding has been used to justify…
Read MoreNew Hickman & Wildermuth Article: Harmonizing Delegation and Deference After Loper Bright
Professors Kristin Hickman and Amy Wildermuth have a new article on Loper’s two buckets: “independent judgment for mere statutory interpretation and reasoned decisionmaking for exercises of delegated policymaking discretion.” Abstract By overturning Chevron, the Supreme Court’s Loper Bright decision clearly changed the way in which courts must approach agency actions interpreting statutes. But Loper Bright stopped well short of declaring…
Read MoreEarly Returns on Loper and Labor Law
Two cases interpreting the Fair Labor Standards Act in the federal courts in Texas have applied the Supreme Court’s Loper Bright decision to overturn to two separate Department of Labor regulations. Tipped Employees In the first case, Restaurant Law Center v. U.S. Department of Labor, 120 F.4th 163 (5th Cir. 2024), the Fifth Circuit overruled…
Read MoreIn a Loper Bright Landscape, North Dakota District Court Rejects CEQ’s Attempt to Issue Binding Legislative Rules
Congress created the Council on Environmental Quality to serve as an advisory body that makes recommendations to the President on what environmental policy should be. But CEQ has long claimed power to issue binding regulations—also known as “legislative rules”—implementing the National Environmental Policy Act. The source of CEQ’s claimed power: not a duly enacted statute…
Read MoreLoper & Statutory Stare Decisis: How Narrow? How Broad?
One of the most interesting questions surrounding the implementation of Loper Bright is its impact on the statutory stare decisis of previous decisions that courts made under the Chevron framework. Elliot Setzer has this essay on the topic over at the Yale Notice & Comment blog: When the Supreme Court overturned the Chevron doctrine in Loper Bright Enterprises…
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