Two New Papers on the Post-Loper Landscape

First, we have Bernard W. Bell from the Rutgers Law School – Newark in the Seton Hall Law Review on “Loper Bright: Resurrecting Skidmore in a New Era.” Some excerpts from the abstract:

In Loper Bright v. Raimondo (2024), the Supreme Court abandoned Chevron deference to agency statutory interpretations, resurrecting the Skidmore “persuasive” deference regime.  This article offers three observations. 

First, the judicial context has changed since Chevron’s adoption, such that the new” Skidmore deference will produce quite different results than the old.

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Second, the “major questions doctrine” will make inroads on Skidmore deference when the text favors agencies.  The Court’s rejection of Chevron (and reinstatement of Skidmore), was based on the concept that “the law” never simply “runs out.” That proposition directly contradicts the premise of the major questions doctrine, that in some instances the law does indeed “run out” and Congress must create “new” law to directly address crucial issues. 

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Third, the article explores the treatment of Chevron-based interpretive precedents in this second Skidmore era.  In Loper Bright, the Court adopted an apparently categorical rule, that Chevron-based precedents remain “good law.”  In so choosing, the Court might have sought to avoid the failures of its more nuanced, and ultimately quite unsatisfactory, Brand X approach to Skidmore-based precedent in a Chevron world.  However, the Loper Bright categorical rule is less categorical than it seems. 

Next, we have Matthew Mulholland from the Lincoln Memorial University Duncan School of Law with “Beyond Saving Ink: How the Current Court Finds Meaning in Statutory Variations Post-Loper Bright.” From the abstract:

This case comment analyzes the Supreme Court’s decision in San Francisco v. EPA, a pivotal moment illustrating the Court’s renewed emphasis on strict statutory interpretation and finding significance in subtle textual variations to limit agency power in the post-Loper Bright era. The case centered on the EPA’s attempt to impose “end-result” prohibitions in San Francisco’s NPDES permit, forbidding discharges contributing to water quality violations or creating pollution under state law. San Francisco argued that these provisions exceeded the EPA’s authority under 33 U.S.C. § 1311(b)(1)(C) of the Clean Water Act, contending that “any more stringent limitation” does not authorize such broad mandates lacking specific, measurable limitations on the facility’s discharges. Applying a strict textualist approach, the Court held that § 1311(b)(1)(C) does not permit the EPA to impose end-result requirements focused on the ultimate condition of the water body rather than the permittee’s specific discharges, emphasizing Congress’s intentional omission of “effluent limitations” in this subsection compared to preceding ones. This decision highlights the Court’s readiness to override decades of agency practice if it conflicts with the statutory text, signaling increased judicial scrutiny of agency interpretations in environmental and administrative law post-Loper Bright, potentially leading to narrower, more literal interpretations absent a clear statutory basis for agency actions. Justice Barrett’s partial dissent advocated for a broader interpretation of “limitation” to encompass the EPA’s end-result requirements as necessary for meeting water quality standards, but the majority’s ruling underscores how the Supreme Court expects the judiciary to take an assertive role in interpreting statutory language and limiting agency power.