Loper Bright Could Be a Watershed Moment

Often, the ramifications of a single court case become apparent years after the decision. All early indications are that Loper Bright¹ was a Big Deal with an immediate impact. In Loper Bright, the United States Supreme Court overruled the doctrine of Chevron² deference to federal agency interpretations of their statutory authority.

As of August 22, 118 cases have cited to Loper Bright. The decisions affect many areas of law, including insurance, noncompete rules, IRS refunds, overtime pay rules, Title IX, and firearms regulations. 

As an example in the real estate context, consider the case of one Arlen Foster of South Dakota: Mr. Foster’s land contains a tree belt, around which snow accumulates during the winter. Spring snowmelt creates a shallow puddle that has been certified as a wetland by the Natural Resources Conservation Service (NRCS), a federal agency under the Department of Agriculture. The certification limits Foster’s use of his farmland, and he has attempted to have the certification removed several times over the last 16 years. His most recent request for review was in 2020, and the NRCS refused to conduct the review, citing noncompliance with its review regulations. 

Foster sued in federal district court, alleging that the NRCS regulations were in conflict with federal statutes. The district court ruled against him, and he appealed. The Eighth Circuit affirmed, applying the Chevron doctrine. The court considered the federal statute, found that it contained ambiguities, and deferred to the agency decision as reasonable.³ The Eighth Circuit’s opinion was filed in May of 2023. Foster petitioned for a writ of certiorari. While the petition was pending, the Supreme Court issued its decision in Loper Bright on June 28, 2024. 

Four days later, the United States Supreme Court granted the petition. In a two-sentence opinion, the Court vacated the judgment and remanded to the Eighth Circuit “for further consideration in light of Loper Bright.”⁴ 

Mr. Foster may lose his case yet, but the case—and others like it—illustrate the shift of power away from federal agencies, who now must operate on a tighter rein. And the number of decisions in the first two months shows that challenges have only begun. 

1. Loper Bright Enter. v. Raimondo, 144 S. Ct. 2244 (2024). ↩︎
2. Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984), overruled by Loper Bright Enter. v. Raimondo, 144 S. Ct. 2244 (2024). ↩︎
3. Foster v. United States Dep’t of Agric., 68 F.4th 372 (8th Cir. 2023), cert. granted, judgment vacated, No. 23-133, 2024 WL 3259663 (U.S. July 2, 2024). ↩︎
4.  Foster v. Dep’t of Agric., No. 23-133, 2024 WL 3259663 (U.S. July 2, 2024). ↩︎