New 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 in a post-Chevron world. 

From the abstract: 

The Supreme Court’s decision in Loper Bright to end formal deference under Chevron to administrative agencies’ interpretations of ambiguous statutes forces agencies into an unprecedented situation. . . . Now, for the first time, agencies are functionally unable to create new regulations with any confidence they will be upheld. . . . 

After Loper Bright, all new regulations . . . can no longer be expected to be upheld if challenged. The Court then extended this attack to nearly ALL regulations with the additional blow from Corner Post. Due to the divided nature of the country and the circuits, any regulation that is inconvenient to a party can now be challenged—and likely will be—in a favorable circuit, upending the agency’s determination.  

In response, agencies will be forced to adapt by pivoting exclusively to interpretive rules. Interpretive rules reflect the agency’s current understanding of the statute but are not legally binding and can be updated as needed. Moving to interpretive rules would significantly speed up the rulemaking process because interpretive rules do not require the extensive notice and comment procedures that must be followed to create true legally binding regulations and do not require multiple rounds before finalization. 

[. . .]  This necessary elimination of notice and comment rulemaking will raise concerns about transparency, public participation, and the stability of government regulations. 

University of Houston law professor Darren Bush published a short response in the same issue: “The Loper Bright Two-Step: A Reply and Comment to Professor Savitz.”  That reply generally supports Professor Savitz’s arguments, while positing further that Loper Bright encapsulates a “spirit” favoring “deregulatory whims,” which cannot be effectively countered by a “broken” Congress.