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Courts are charting different paths in applying Loper Bright, raising questions about the future of administrative law. This edition explores the D.C. Circuit’s split on furnace regulations and the Sixth Circuit’s nod to a growing consensus on NLRB oversight.


** D.C. Circuit Splits on Application of Loper Bright to Furnace Regulations
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AFP Foundation’s Ryan Mulvey writes ([link removed]) on American Gas Ass’n v. Department of Energy ([link removed]) :

The American Gas Ass’n panel latched on to this apparent caveat in Loper Bright to conclude that Congress gave DOE “‘a degree of discretion’ to decide what constitutes a “performance characteristic” or “feature” under EPCA. The majority noted those terms were quite broad as a matter of plain meaning, and their practical significance—for example, as applied to condensing and non-condensing appliances—was necessarily case-specific. That much seemed to be supported by the legislative history, too. The Circuit ultimately concluded there was “no reason to second-guess DOE’s view, ‘especially since it “rest[ed] on the agency’s evaluations of scientific data within its area of expertise.”’” The statutory terms at issue were capacious enough to accommodate some interpretive flexibility, and the plaintiffs had not shown, “by a preponderance of the evidence,” that DOE stepped outside the bounds of that discretion.

Judge Noemi Rao dissented from the majority’s conclusions and criticized the panel’s application of Loper Bright. In her mind, this case presented a relatively simple question of whether non-condensing appliances’ venting mechanisms qualified as a “performance characteristic” under EPCA—an issue that could be resolved by a judge with traditional tools of statutory interpretation that evaluate “ordinary, contemporary, common meaning” and the “overall statutory scheme.” The majority’s special solicitude for DOE’s interpretation—one that troublingly “flip-flopped across administrations”—under the guise of “respecting” DOE’s supposed “expertise” amounted to “Loper Bright avoidance.”

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** Sixth Circuit Decision Notes Growing Consensus Loper Bright Applies To NLRB
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AFP Foundation’s Michael Pepson writes ([link removed]) on Home Depot v. NLRB ([link removed]) :

In its wake, questions have arisen ([link removed]) as to whether and how Loper Bright applies to the National Labor Relations Board’s interpretations of the National Labor Relations Act, a statute that predated the APA. And the NLRB has taken the position ([link removed]) that even after Loper Bright, its interpretations of the NLRA are entitled to deference.

The issue is not entirely settled. For example, just last week in Home Depot v. NLRB ([link removed]) the Eighth Circuit declined to weigh in on “whether the Board’s decision that Home Depot failed to demonstrate the claimed special circumstances is a legal conclusion we review de novo and if review is not de novo, whether a less deferential standard of review is mandated by the Supreme Court’s recent decision in Loper Bright[.]” But the Sixth Circuit’s recent decision in NLRB v. Starbucks ([link removed]) marks the latest example of courts reviewing the NLRB’s interpretations of the NLRA de novo in light of Loper Bright.
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** Quick Hits
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* Law vs. Fact After Loper Bright
Separation of Powers Institute Professor Chad Squitieri hosted Professor Natalie Schmidt for a fascinating discussion ([link removed]) about her article on the distinction between law and fact. The podcast covers formalism, functionalism, realism, agencies’ role in factfinding, and why the distinction between law and fact is critical following the Supreme Court’s decision in Loper Bright.
🔗 Read the article ([link removed])

* Catholic University Event on Major Questions After Loper
A recent event examined how the major questions doctrine interacts with Loper Bright, offering insights from legal scholars and practitioners.
🔗 Watch the event recording ([link removed])
* Podcast Discussion of Eli Nachmany's “Deference Undisturbed”
Jace Lington and Bennett Nuss discuss the implications of the Loper Bright decision on administrative law with guest Eli Nachmany
🔗 Listen to the Podcast ([link removed])


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