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

In Loper Bright Enterprises v. Raimando, the Supreme Court overturned Chevron U.S.A. v. NRDC‘s holding that federal courts should defer to reasonable agency interpretations of ambiguous statutory provisions. In Loper Bright, the Court concluded that Chevron deference was incompatible with the Administrative Procedure Act. As Chief Jsutice Roberts explained, Section 706 of the APA  provides “‘the reviewing court’—not the agency whose action it reviews—is to ‘decide all relevant questions of law’ and ‘interpret . . . statutory provisions.'”

The Chevron opinion made no effort to reconcile its holding with the language of the APA. Indeed, the Chevron decision did not mention the APA at all. But perhaps there was a good reason for that.

In a footnote to his dissent in Hospital Menonita de Guayama v. NLRB–a case in which the D.C. Circuit was instructed by the Supreme Court to reconsider its prior decision deferring to an agency interpretation under Chevron–Judge Ray Randolph addresses this “error” in Loper Bright.

There is an error in the Supreme Court’s analysis in Loper Bright. Much of the Court’s reasoning (and a part of Justice Gorsuch’s concurrence) is devoted to criticizing the Chevron opinion for ignoring section 706 of the Administrative Procedure Act, 5 U.S.C. § 706. See, e.g., 603 U.S. at 397-400, 411-12; id. at 428 (Gorsuch, J., concurring). The Court’s critique is unfounded. It is unfounded because section 706 of the APA did not apply to judicial review of the EPA rule at issue in Chevron. Section 706 did not apply because Chevron was not an APA review case. The Clean Air Act superseded the APA: “The provisions of section 553 through 557 and section 706 of Title 5 [the APA] shall not, except as expressly provided in this subsection, apply to actions to which this subsection applies.” 42 U.S.C. § 7607(d)(1). The problem the Court identified in Loper Bright was not with Chevron itself, but with courts, including the Supreme Court, indiscriminately adopting the Chevron formula in later cases in which section 706 of the APA did apply.