Loper Bright
Does Stinson Deference Survive Loper Bright? Cert Petition in Poore v. United States Gives Supreme Court Opportunity to Decide.
On September 18th, the Supreme Court requested that the government file a response to the pending cert petition in Poore v. United States, a case raising an interesting Loper Bright implementation question.
Read MoreFifth Circuit Upholds EPA Disapproval of Texas Ozone Implementation Plan Under Loper Bright
Last week, the Fifth Circuit issued a significant decision in Texas v. EPA, denying Texas’s petition for review of the Environmental Protection Agency’s (“EPA”) disapproval of a State Implementation Plan (“SIP”) under the Clean Air Act (“CAA”). The case is notable not only for its implications for interstate air pollution regulation, but also for its…
Read MoreThird Circuit Upholds PBGC Relief-Fund Asset Regulations Under Loper Bright
Earlier this month, the Third Circuit released its decision in In re Yellow Corp., a case that started as a high-stakes bankruptcy dispute and ended up involving a challenge to the Pension Benefit Guaranty Corporation’s (“PBGC”) regulations imposing “reasonable conditions” on the use of COVID-19 relief funds. The Yellow Corp. decision offers another example of…
Read MoreRyan Mulvey Discusses Constitution Day and Loper Bright on Wake Up Live with Christopher DeSimone
AFP Foundation’s Ryan Mulvey discusses his Constitution Day essay.
Read MoreRestoring the Constitution’s Separation of Powers: Chevron’s Demise and the Promise of Loper Bright
On September 17, 1787—today, 238 years ago—a momentous event took place in Philadelphia, Pennsylvania. Delegates from the thirteen States, who were assembled in convention, signed our United States Constitution. Although the Constitution was not ratified until the next year, its completion and presentation to the States for adoption marked the beginning of a radical restructuring…
Read MoreSecond Circuit Upholds FCC Forfeiture After Identifying Delegation of Discretionary Authority as Required Under Loper Bright
Last week, in Verizon Communications Inc. v. Federal Communications Commission, the Second Circuit rejected a petition for review of a forfeiture order imposing nearly $47 million in penalties for violation of the confidentiality provisions of the federal Communications Act. In doing so, the Circuit offered an important example of how courts will apply the de…
Read MoreNew Article on Loper Bright, Interpretive Rules, and Sub-regulatory Guidance
The University of New Hampshire Law Review recently published an article by University of Tulsa law professor Gwendolyn Savitz entitled “Interpretive Rules are the New Regulations: Agency Guidance After Loper Bright.” The article explores the impact Loper Bright might have on agencies turning to interpretive rules to bypass notice-and-comment rulemaking and, potentially, searching judicial review…
Read MoreD.C. Circuit Accepts FERC Regulatory Interpretation Previously Upheld under Chevron Step-Two
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…
Read MorePacific Legal Foundation Launches Nondelegation Project
The Pacific Legal Foundation launched a new tool that “uses artificial intelligence to trace every federal regulation back to the law that supposedly authorizes it.”
Read MoreEighth Circuit Decision Striking Down Biden EV Subsidy Highlights Loper Bright’s Impact
On Friday, 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. Two months…
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