Max Sarinsky (New York University School of Law) has posted The Best Misreading: Loper Bright and the Trump Administration’s Efforts to Evade Environmental Precedent on SSRN. Here is the abstract:
How should one think about the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo? On its face, Loper Bright is a meaningful yet measured Supreme Court decision that requires agencies to act consistently with how courts read statutes. But for the Trump Administration, the opinion has served as an invitation to eliminate many federal regulations, including those aimed at protecting the environment and public health.
This Essay explores that tension. It focuses on three final or proposed rules—involving greenhouse gas emissions, state water-quality reviews, and endangered-species protections—in which the Trump Administration has sought to roll back longstanding environmental protections. In each instance, the Administration argues that, after Loper Bright, the governing statute no longer supports regulatory authority that the Supreme Court previously upheld.
In each instance, the Trump Administration misreads Loper Bright. Sometimes, it disregards the case’s instruction that judicial decisions applying Chevron deference remain good law. Other times, it questions prior Supreme Court decisions that did not rely on Chevron deference or were decided at Chevron’s first step, meaning that the Supreme Court already decided the best reading of the statute.
For these reasons, the Trump Administration cannot rely on Loper Bright to sidestep the three Supreme Court environmental precedents discussed in this Essay. Any contrary result in future litigation would convert Loper Bright from a limited doctrinal development to a broad deregulatory catalyst.
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