Dan Farber on Loper Bright and Grandmothering

I think there was a lot of concern about the “foundational regulatory structure” being overturned by the Loper decision, perhaps by reporters who didn’t have time to digest it, or people who simply want to generate fear and clicks.  The media push might not even be so much about the decision itself, as fitting the decision into the current political “bad Supreme Court” narrative.

So I’ve been curious to back up and see what legal minds, after some reflection and careful thought, have to say about the “grandmothering” of decisions I mentioned yesterday.  Fortunately, Dan Farber of the UC Berkeley Law School addressed this directly in a Legal Planet blog post. 

Remember, new regulations are relatively few in Forest Service world.  The OG effort is a national plan amendment, and the NWFP is a regional plan amendment.  Perhaps there are more regulations in BLM world, most notably the recent Public Lands Rule.

Farber also has a post specifically on “Is the sky falling?”

But unlike many commentators, I don’t think the sky is falling. I was teaching environmental law before Chevron was decided, and I can testify that agencies like EPA were able to succeed in that setting.

It is interesting to consider what having old people around who remember the past adds to the discussion.

Anyway, back to the details of grandmothering.

To cushion the shock of abandoning Chevron, the Supreme Court created a safe harbor for past judicial decisions. This was well-advised. The Court itself applied Chevron at least seventy time, as did thousands of lower court decisions. The key question will be the scope of the grandfather clause.

The Court’s discussion began by saying that “we do not call into question prior cases that relied on the Chevron framework.”  Thus, “the holdings of those cases that specific agency actions are lawful—in­cluding the Clean Air Act holding of Chevron itself—are still subject to statutory stare decisis [Latin for standing by past decisions] despite our change interpretive methodology.” “This means that “mere reliance on Chevron cannot constitute a ‘special justification’ for overruling such a holding, because to say a precedent relied on Chevron is, at best, ‘just an argument that the precedent was wrongly decided.’”  And “That is not enough to justify overruling a statutory precedent.”

It seems clear that the specific regulation upheld by an earlier decision is protected by that previous decision.  Thus, the idea that overruling Chevron makes it open season on existing regulations is an exaggeration, because many of those regulations are protected by binding precedent.  The next question is the scope of the protection given an agency. The Court begins by referring to specific regulations but then talks more broadly about statutory stare decisis (precedent).

It’s significant that the Court referred to statutory stare decisis, because the general rule is that cases interpreting statutes are especially difficult to overrule.  Unlike a constitutional decision, a case interpreting a statute can be reversed by Congress passing a new law.  Therefore, error correction by the courts is less needed for statutory precedents. That means that overruling cases from the Chevron era will be very difficult.

What happens if a regulation that was upheld under Chevron is later amended? If the features of the regulation that were challenged in the earlier case remain unchanged, that should mean that the validity of those features is still binding law.  Presumably, the same should be true even if the agency repeals the earlier regulation and replaces it with a new regulation that retains those features. The innovations in the new regulation might be subject to attack, but stare decisis (respect for precedent) should protect the features inherited from the earlier regulation.

For example, EPA issued an interstate pollution rule that was based on an earlier Supreme Court decision called EME Homer.   Less than a week before Loper, the Court stayed that decision for other reasons, but nowhere in that opinion was there a hint that EME Homer was in any way in doubt.

There has been talk about a surge of litigation challenging regulations that were upheld under Chevron.  The Court seems to have been trying to shut the door to such challenges. Doing otherwise would have introduced chaos into many areas of regulation, with a devastating effect on everyone who had relied on those decisions – investors, agency officials, states, and Congress itself. No doubt there will be a few lawless judges – probably in the Fifth Circuit – who will ignore the Court’s directives. They will deserve summary reversal by the Supreme Court.

I don’t know what things the Fifth Circuit has done to irritate Farber. There are several National Forests, but not that much FS litigation that I recall.

4 thoughts on “Dan Farber on Loper Bright and Grandmothering”

  1. The 5th Circuit is a bete noire of the left, much as the right reviles the 9th Circuit.


    The court is particularly noteworthy for having struck down an EPA attempt to ban asbestos-containing products:


    and an Obama-era immigration policy:


    And as an old person who remembers the past, I agree with Farber on Loper. 🙂

  2. Here’s another take on Loper Bright… (Thanks to Nick Smith for the link):

    How will Loper Bright affect the natural resources industry?

    Chevron was a foundational environmental and natural resources case. Its impacts in the courts are clear, since agency interpretations were often accepted when Chevron applied. These cases had substantial impacts on how businesses operated. For example, in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687, 115 S.Ct. 2407 (1995), the Supreme Court examined a challenge to a Fish and Wildlife Service rule that defined “take” under the Endangered Species Act. Although the common meaning of “take” did not extend as far, the rule included “habitat modification or destruction” as an element of take. The Sweet Home petitioners depended on forest products and argued the updated definition of take had harmed them by limiting logging in certain areas designated as wildlife habitat. The Court concluded that the statutory definition was ambiguous and acknowledged that petitioners offered strong arguments to support their contention that the rule was too broad. Nonetheless, relying on Chevron, the Court upheld the rule.

    Loper Bright does not curtail all agency deference. First, as mentioned above, agency interpretations can still be persuasive, and likely will be given great weight.[14] Second, agencies retain the ability to interpret their own regulations; an agency interpretation of its own ambiguous regulation will be upheld if it is “within the bounds of reasonable interpretation.”[15] Third, when agency action is reviewed under the APA, matters within the agency’s expertise will receive a measure of deference under the statute’s “arbitrary and capricious” standard.[16]

  3. Picking up on Steve’s comment: Remember that the Supremes in Loper drew a distinction between questions of statutory interpretation (for which agencies receive no deference) and questions of fact (for which the agencies apparently receive at least some measure of deference). Thus, agencies are still (it appears) constrained by their own administrative records.

    To use an extreme example, if an approved logging project would require the construction (or reconstruction) of 2 road miles/square mile in the project area, while the only evidence in the record demonstrates that anything more than .5 road miles/square mile within that area would jeopardize an endangered grizzly population, the agency would probably suffer remand (absent, perhaps, evidence-based FWS concurrence). Loper would probably not have any effect on this or similar outcomes.


Leave a Comment

Discover more from The Smokey Wire : National Forest News and Views

Subscribe now to keep reading and get access to the full archive.

Continue reading