UnCommon Law’s 5-Part Series: ‘The Rise and Fall of Agency Power: From Chevron Deference to Loper Bright’

This season of the UnCommon Law podcast delves into federal agency power in America, charting its dramatic evolution over the past 40-years. We explore the rise and fall of the Chevron doctrine and unpack the implications of this seismic shift on the future of regulation in the US.

In light of the Supreme Court’s Loper Bright decision, will President Trump and his appointed agency leaders be empowered to more aggressively dismantle regulations they consider burdensome, or will the judiciary leverage its newfound interpretive authority to resist these efforts? Join us as we navigate the changing dynamics of federal agency authority and judicial oversight.

Episode 1 — Rise of the Chevron Doctrine: The Case That Defined Agency Power

In this episode, we delve into a pivotal moment in legal history: the 1984 Supreme Court decision in Chevron v. NRDC. Faced with the challenge of interpreting an ambiguous or silent congressional statute, the Reagan administration’s EPA adopted a business-friendly interpretation of key provisions of the Clean Air Act.

That approach sparked a lawsuit from the Natural Resources Defense Council, leading to a Supreme Court ruling that established the Chevron doctrine – a principle that expanded the authority of federal agencies and shaped administrative law for decades. We explore the details of this landmark Supreme Court case and its enduring impact.

Featuring:

• David Doniger, senior attorney with the Natural Resources Defense Council
• Jennifer Hijazi, environment reporter for Bloomberg Industry Group

Episode 2 — Why the Fishing Industry Fought: Inside the Battle Over Chevron

In this episode, we delve into a high-stakes legal battle that thrust the fishing industry into the national spotlight.

Wayne Reichle, the president of New Jersey-based Lund’s Fisheries admits that he had never heard of the Chevron doctrine. “No idea,” Reichle confessed, echoing the sentiments of many fellow fishermen who were equally unaware.

Everything changed when a group of fishermen challenged a federal regulation requiring the herring industry to cover the costs of onboard federal observers, who were tasked with enforcing regulations to prevent overfishing. This legal challenge eventually reached the Supreme Court. “I think there’s quite a few that know what the Chevron doctrine is today,” Reichle reflects now.

This episode examines the dynamics of agency power and its implications when those being regulated believe an agency has overstepped its authority, and are willing to engage in a legal battle. This is the story of the fishermen who dared to fight back against the system.

Featuring:

• Wayne Reichle, president of Lund’s Fisheries
• Jeff Kaelin, director of sustainability and government relations at Lund’s Fisheries
• Ryan Mulvey, counsel with the Cause of Action Institute
• Erica Fuller, senior counsel with the Conservation Law Foundation
• Leif Axelsson, captain of the Dyrsten fishing vessel
• Greg Stohr, Supreme Court reporter for Bloomberg News

Episode 3 — Inside Loper Bright: How Fishermen Shaped a Supreme Court Ruling

Federal agencies expanding their power beyond congressional intent? Unelected bureaucrats making policy decisions? Regulatory whiplash? Litigants urging the Supreme Court to overturn Chevron deference in the Loper Bright case argued that allowing the legal doctrine to persist would continue to expose Americans to these harms.

However, striking down the pivotal legal principle that had been in place for 40 years would bring its own risks, defenders argued. Judges would be forced to make scientific and technical decisions with no specialized expertise. Regulatory uncertainty would soar as thousands of existing rules and regulations would face new challenges. And the Supreme Court itself could be forced to become, as Justice Ketanji Brown Jackson put it, “uber-legislators.”

In this episode, we examine how the Supreme Court ostensibly considered the plight of herring fishermen, but actually decided whether to abandon the Chevron doctrine once and for all.

Featuring:

• Ryan Mulvey, counsel with the Cause of Action Institute
• Jeff Kaelin, director of sustainability and government relations at Lund’s Fisheries
• Wayne Reichle, President of Lund’s Fisheries
• Gillian Metzger, Harlan Fiske Stone Professor of constitutional law at Columbia University
• Lydia Wheeler, co-host of Cases and Controversies & Supreme Court reporter for Bloomberg Law
• Greg Stohr, co-host of Cases and Controversies & Supreme Court reporter for Bloomberg News
• Kimberly Robinson, co-host of Cases and Controversies & Supreme Court reporter for Bloomberg Law

Episode 4 — Chevron is Dead. Is the Administrative State Still Alive?

In this episode, we explore the aftermath of the Supreme Court’s decision to overturn the Chevron doctrine through the Loper Bright case, examining its impact on the regulatory landscape in America.

In just the first six months after Loper Bright was decided, courts cited the case more than 400 times, leading to the invalidation of new agency rules 84% of the time. This has affected policies ranging from net neutrality to labor regulations to environmental protections. We delve into how Loper Bright has already reshaped American regulatory policy.

We also look into the Trump administration’s strategic use of Loper Bright to dismantle Biden-era rules, directing agencies to identify regulations that may be vulnerable under this new legal framework.

But is the celebration over Chevron’s demise premature? Some legal experts describe Loper Bright as “a Rorschach test inside a crystal ball” suggesting theat its impact might be more complex than anticipated, with different interpretations emerging.

Featuring:

• Helgi Walker, partner at Gibson Dunn and co-chair of their administrative law and regulatory practice group
• Rebecca Rainey, senior labor department reporter for Bloomberg Law
• Cary Coglianese, professor at the University of Pennsylvania Carey Law School and director of the Penn Program on Regulation

Special thanks to Bloomberg Law environment reporter Jennifer Hijazi for her assistance with this episode.

Episode 5 — After Loper Bright, Congress Weighs Sweating the Small Stuff

For decades, generations of schoolchildren linked to the video on the Schoolhouse Rock YouTube channellearned from Schoolhouse Rock that bills become laws through careful committee work, open debate, and thoughtful compromise. But as this episode of UnCommon Law makes clear, that tidy version of lawmaking no longer reflects reality. Instead, leaders often craft omnibus bills in back rooms and create deliberately vague laws that punt hard decisions to federal agencies. But with the Supreme Court’s Loper Bright decision ending 40 years of judicial deference to agencies, critics say Congress can no longer hide behind this broken system.

In this season finale, we hear from a current and a former senator on opposite sides of the aisle who both argue that Congress must reclaim its constitutional role. They agree that decades of delegating authority to agencies has weakened the legislature, but they diverge on what should happen next. Should lawmakers strip out vague catchall words to limit agency discretion? Or should Congress work more closely with agencies to ensure workable, expert-informed legislation?

But can a deeply polarized institution actually change? While both senators agree on some solutions, they differ sharply on whether a different approach is even possible in today’s political climate. On today’s episode, we explore whether Congress can reclaim its constitutional role.

Featuring:

• Sen. Eric Schmitt, R-Mo.
• Former Sen. Heidi Heitkamp, D-N.D.

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