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Recent Supreme Court Decisions/Administrative Law
Manufacture Alabama
November 13, 2024
Rob Fowler
Counsel and Environmental Team Leader
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Recent Supreme Court Decisions
Loper Bright Enterprises v. Raimondo
Since Chevron, “we have sometimes required courts to defer to ‘permissible’ agency interpretations of the statutes those agencies administer—even when a reviewing court reads the statute differently. In these cases we consider whether that doctrine should be overruled.” Loper Bright, slip op. at 1 (emphasis added).
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Chevron Deference Deference:
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Chevron Step 1:
The Court ask: Whether Congress has “directly spoken to the precise question at issue.”
YES
Chevron Step 2:
The court ask whether the agency’s action “is based on a permissible construction of the statute.” “A court could not substitute its own construction of a statute” for a reasonable interpretation made by the administrator of an agency.
NO
Silent or Ambiguous
The Court “must give effect to the unambiguously expressed intent of Congress.”
Interesting Fact: Circuit Courts applied Chevron to 74.8% of administrative law cases, Skidmore to 10.8% and de novo of 7.5%.
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Loper Bright, slip op. at 35:
“Chevron is overruled. Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority, as the APA requires . . . courts need not and under the APA may not defer to an agency interpretation of the law simply because it is ambiguous.”
The Death of Chevron
Concurring Opinions
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“Chevron deference also
violates our Constitution’s
separation of powers.”
“The reasonable bureaucrat always wins. And because the reasonable bureaucrat may change his mind year to year and election to election, the people can never know with certainty what new ‘interpretations’ might be used against them.”
Chevron Deference Analysis & Impacts:
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Chevron Step 1:
The Court ask: Whether Congress has “directly spoken to the precise question at issue.”
YES
Chevron Step 2:
The court ask whether the agency’s action “is based on a permissible construction of the statute.” “A court could not substitute its own construction of a statute” for a “reasonable interpretation” made by the administrator of an agency.
NO
Silent or Ambiguous
The Court “must give effect to the unambiguously expressed intent of Congress.”
IMPACT
Federal agencies won 93.8% of Federal Appellate cases when courts reach Step 2 of Chevron analysis!
IMPACT
Federal agencies won 38.8% of Federal Appellate cases decided at Step 1 of Chevron analysis.
Stephen Alexander Vaden, The Federalist Society, “Chevron Deference in the Circuit Courts: An Empirical Study, August 17, 2016. (citing Kent H. Barnett & Christopher J. Walker, Chevron in the Circuit Courts, Michigan Law Review, Vol. 116, pp. 1-73 (2017).
Agencies’ Win Percentages When Courts Applied Chevron
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15.1% Difference!
WHY?
Stephen Alexander Vaden, The Federalist Society, “Chevron Deference in the Circuit Courts: An Empirical Study, August 17, 2016. (citing Kent H. Barnett & Christopher J. Walker, Chevron in the Circuit Courts, Michigan Law Review, Vol. 116, pp. 1-73 (2017)
The Good News and Bad News of Loper Bright
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The Good News:
The Good News and Bad News of Loper Bright
The Bad News:
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Corner Post v. Board of Governors of the Federal Reserve System
Factual/Procedural Background:
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Corner Post (cont.)
The Supreme Court effectively eliminated the statute of limitations for challenging agency rulemaking under the APA:
“An APA claim does not accrue . . . until the plaintiff is injured by final agency action” . . . [,] which only occurs once the plaintiff has a “complete and present cause of action.”
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Corner Post v. Board of Governors of the Federal Reserve System
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Potential Impacts of Corner Post
Administrative Procedure Act (APA) Challenges
Facial Challenges: The decision allows for more challenges to agency regulations that were previously considered immune after a six-year period. This means longstanding regulations could now be contested if a plaintiff experiences injury within the last six years. WITHOUT CHEVRON DEFERENCE!
Statute of Limitations: The ruling clarifies that claims under the APA accrue when a plaintiff suffers an injury, not when the agency action becomes final. This could lead to a reevaluation of how and when challenges to agency actions can be filed.
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Potential Impacts of Corner Post (cont.)
Environmental Regulations
Many environmental rules established by federal agencies may be vulnerable to new challenges. The decision could lead to increased litigation against rules that were previously thought to be settled, including those related to pollution and resource management.
Financial Regulations
Rules set by financial regulatory bodies, such as the Federal Reserve and the SEC, may also face renewed scrutiny. This includes regulations concerning financial practices and consumer protections that could be challenged based on the new interpretation of the statute of limitations
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Potential Impacts of Corner Post (cont.)
Health and Safety Regulations
Regulations from agencies like the FDA or OSHA could be revisited, particularly those that have been in place for several years but may have adverse effects on specific groups or industries. For example, a safety regulation might be beneficial in general but could disproportionately impact small businesses or specific sectors.
Labor and Employment Rules
Labor regulations that affect workplace standards and employee rights may also be subject to new challenges, especially if employees can demonstrate recent injuries or adverse effects stemming from these rules
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Securities and Exchange Commission v. Jarkesy
Factual/Procedural Background of Jarkesy:
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Securities and Exchange Commission v. Jarkesy
Possibly implications of Jarkesy:
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Questions?
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