Loper Bright

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…

Loper Bright has reached the Court of Federal Claims for review of bid protests under the Administrative Procedures Act (APA).  QED GROUP LLC v. USA, No. 1:2024cv01961 – Document 47 (Fed. Cl. 2025) In a dispute over whether a prospective bidder for a broad pre-approved vendor list could be excluded because it was subject to…

The event will discuss how the Loper and other court decisions “pose challenges for Congress in how it legislates and directs regulatory agencies. They also underscore existing concerns over congressional capacity, internal processes, and the legislative branch’s ability to tackle complex policy challenges. Last year, BPC established the Working Group on Congress, Courts, and Administrative Law to…

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…

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…

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…

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…

When the Supreme Court overruled Chevron last year in Loper Bright Enterprises v. Raimondo, Chief Justice John Roberts seemed at pains to limit the impact of upending the Chevron methodology to future cases.  He explained that Loper Bright “do[es] not call into question prior cases that relied on the Chevron framework.  The holdings of those…

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…