Administrative Law After Loper Bright Enterprises v. Raimondo
(CAELP | August 2024)

For four decades, federal courts relied on the Chevron doctrine to guide their approach in determining whether to defer to an agency’s interpretation of a statute. In Loper Bright Enterprises v. Raimondo, the Supreme Court concluded that the forty-year-old Chevron doctrine violated the judicial review provisions of the Administrative Procedure Act. This white paper explores the near-term implications of Loper Bright for administrative law and provides initial guidance for litigators defending agency actions.

Major Floodgates: The Indeterminate Major Questions Doctrine Inundates Lower Courts
(Harvard Journal on Legislation | June 2024)

It has been two years since the U.S. Supreme Court formally embraced the Major Questions Doctrine (“MQD”) in its groundbreaking decision in West Virginia v. EPA. On its face, the doctrine is limited to “extraordinary cases ... in which the history and the breadth of the authority that the agency has asserted, and the economic and political significance of that assertion, provide a reason to hesitate before concluding that Congress meant to confer” the authority for the challenged regulation absent “clear congressional authorization.” In practice, however, the MQD is an arbitrary doctrine that injects uncertainty into a wide range of administrative law and other cases. Unchecked, the doctrine threatens to overwhelm lower court dockets and disrupt government’s ability to function. This essay by CAELP Senior Attorney Patrick Jacobi and Executive Director Jonas Monast explores the profoundly disruptive nature of the MQD by surveying judicial rationales and litigants’ arguments to demonstrate the breadth and potential impact of the nascent doctrine. 

CLEARING THE AIR ON SUPPLEMENTAL ENVIRONMENTAL PROJECTS
(Environmental Law Reporter | May 2024)

Supplemental environmental projects (SEPs) have received a growing amount of attention in recent years, from the Donald Trump Administration banning their use in settlements, to regulation and guidance from the Joseph Biden Administration reversing the ban, to legislative proposals prohibiting them altogether. This article – authored by CAELP’s Daniel Alvarez and Jonas Monast, with Hannah Perls – examines SEPs’ legality under existing law, focusing on claims that they violate the Miscellaneous Receipts Act and the Antideficiency Act. It begins with a brief history of SEPs’ policy evolution and the limitations on the U.S. Environmental Protection Agency’s and U.S. Department of Justice’s (DOJ’s) settlement discretion. It then examines claims that SEPs are unlawful, focusing on arguments made in a 2020 DOJ policy memo. It concludes that the 2020 analysis is flawed, masking policy preferences under the guise of statutory interpretation; and that opponents’ arguments ignore long-standing legal distinctions between payments negotiated in settlements and penalties assigned by a judge following a finding of liability. 

What you need to know about the new EPA power plant standards
(Volts Podcast | May 6, 2024)

Volts is a podcast about leaving fossil fuels behind. In this episode, CAELP Executive Director Jonas Monast and Director of Policy Analysis Grace Van Horn do a deep analysis on the EPA’s recently finalized carbon pollution standards for power plants.