Is There Actually an Error in the Supreme Court’s Analysis in Loper Bright?

On Thursday, I noted an interesting footnote in Senior Circuit Judge Ray Randolph’s dissent in Hospital Menonita de Guayama v. NLRB (an interesting decision in its own right), suggesting that the Supreme Court’s decision ending Chevron deference in Loper Bright Enterprises v. Raimando failed to account for the fact that Chevron had not been an APA case, but was rather governed by the judicial review provisions of the Clean Air Act. But is this so?

An astute reader pointed me to another footnote–this one from a law review article by Professor John Duffy–suggesting that at the time Chevron v. NRDC was decided, the issue from the Court was, in fact, governed by the APA. In FN19, Professor Duffy writes:

Some scholarship suggests that the Chevron case itself was not subject to section 706 because subsection (d) of section 307 of the Clean Air Act (42 U.S.C. § 7607(d)) contains an explicit exemption making section 706 inapplicable. See, e.g., Jack M. Beermann, Chevron Is a Rorschach Test Ink Blot, 32 J.L. &POL. 305, 307–08, 307 n.8 (2017) (stating that “[j]udicial review of EPA rules under the Clean Air Act is governed by 42 U.S.C. § 7607(d) and not by APA § 706”). The relevant provision, however, exempts from section 706 only EPA actions listed in section 307(d)(1), which at the relevant time included fourteen categories of EPA actions, none of which covered the EPA rulemaking being reviewed in the Chevron litigation. See 42 U.S.C. § 7607(d)(1)(A)–(N) (1982). In fact, at the time it was promulgating the final rule challenged in Chevron, the EPA itself analyzed the applicability of subsection (d) of section 307 and correctly determined that rules being promulgated were “not subject to Section 307(d).” Requirements for Preparation, Adoption and Submittal of Implementation Plans, 46 Fed. Reg. 50766, 50770 (Oct. 14, 1981) (codified at 40 C.F.R. pts. 51–52).

So perhaps Judge Randolph spoke too soon.

This is an interesting dispute, but it does not have much bearing on Loper Bright Enterprises. Judge Randolph’s point was raised by the petitioners (see, e.g,, the oral argument transcript at p. 87), and the substance of judicial review under 42 U.S.C. § 7607 is not materially different from that under APA § 706 (though there are important procedural differences for rulemakings).

While Chevron made no reference to the APA, the Chevron doctrine was understood to apply to APA cases, so whether the doctrine comports with the APA mattered–a point Judge Randolph concedes. The Court’s decision in Loper Bright rejected the Chevron methodology–in particular the requirement that courts defer to reasonable agency interpretations of ambiguous statutory language–not its interpretation of the Clean Air Act or its conclusion that the EPA regulation at issue was permissible.