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43 JREG Bulletin 1 (2025)

handle is hein.journals/jregb43 and id is 1 raw text is: Does Loper Bright Apply to the Clean Air Act? Lisa Heinzerlingt In Loper Bright Enterprises v. Raimondo, the Supreme Court renounced the principle that courts should defer to agencies' reasonable resolutions of ambiguities in the statutes they administer in unqualfied terms. In concluding that Chevron deference was and always had been unlawful, the Court relied on section 706 of the Administrative Procedure Act of 1946 (APA), which describes the scope of review for judicial review of agency action. But several important federal statutes, including the Clean Air Act and the National Labor Relations Act, provide for judicial review of some agency decisions outside of the APA, and, crucially, do not contain the APA language that the Court found decisive in deeming interpretive deference unlawful. There is a serious question whether Loper Bright applies at all to judicial review of agencies' interpretive judgments in statutory contexts that do not involve the APA. In this Article, Ifocus specfically on the possibility that Loper Bright does not apply to judicial review of most of the rulemaking that occurs under the Clean Air Act. I argue that, by its own terms, Loper Bright does not apply to most of the rules issued under the Clean Air Act because the Clean Air Act's provision on judicial review does not include the part of the APA deemed central in Loper Bright. It remains unclear, however, whether courts will seriously consider the possibility that Loper Bright does not apply to all administrative challenges raising interpretive issues. In that event, the courts must grapple with the fact that Loper Bright unsettles their longstanding assumptions about the appropriateness of holding litigation over a prior administration's interpretive judgments in abeyance based on a new administration's intention to revisit them. The general practice of suspending litigation while a new presidential administration pursues a different path is a questionable holdover from the Chevron era. The analysis presented here has particular significance for the D.C. Circuit's decisions suspending litigation over every one of the most important Clean Air Act rules issued in the Biden administration. 1 T Justice William J. Brennan, Jr. Professor of Law, Georgetown University Law Center. I am grateful to Giulia Gerard and Jay Sullivan for terrific research assistance.