The Loper Bright/Relentless Promise versus the Realities of the D.C. Circuit’s Post-Loper Cases

It has been almost a year and a half since the Supreme Court overruled Chevron, and its requirement that courts sometimes “defer to ‘permissible’ agency interpretations of” statutes. In doing so, the Supreme Court unqualifiedly stated that, “[i]n the business of statutory interpretation, if it is not the best, it is not permissible.” One would expect that the end of forty years of Chevron deference and the Supreme Court’s clarion call for judges to reach a statute’s one best interpretation would have some discernable impact. But has it?

Looking at the D.C. Circuit’s post-Loper Bright administrative statutory interpretation decisions, it seems that the court has simply multiplied the methods it employs to uphold agency action. The D.C. Circuit has recently invoked Skidmore deference for matters within agency expertise, respect for discretion Congress delegated to an agency,deference for contemporaneous agency interpretations, and historic agency practice as interpretive aids or other means to rule in favor of the Department of Energy, the SEC, FERC, the IRS, and the FCC.

In American Gas Association v. Department of Energy, the court afforded Skidmore deference to the Department’s determination of what was and was not a performance characteristic, thereby upholding new efficiency standards that will allegedly eliminate the use of common types of furnaces and appliances. The court rejected petitioners’ claims that the manner of venting, which can significantly alter plumbing and architecture and cost tens of thousands of dollars to address in a retrofit, was a performance characteristic. The court reasoned that if Congress had intended the manner of venting to be considered, it could have said so. Absent congressional specificity, agency interpretation reigned.

In CBOE Global Markets v. SEC and National Association of Broadcasters v. FCC, the D.C. Circuit found that that best reading of the statutes revealed that Congress intended to delegate broad discretionary authority to the respective commissions. In CBOE, the question was whether the SEC could regulate certain fees. The court reasoned that because Congress gave the SEC substantial flexibility in service to its power to act “boldly and effectively,” the SEC’s power to regulate “information with respect to quotations and transactions” included the power to regulate fees. The court noted that the statute sometimes, but not here, explicitly gave SEC power over fees. Nonetheless, the court rejected the normal presumption that omissions are intentional in favor of the presumption that Congress “left to reasonable agency discretion questions that it has not directly resolved.” Again, absent congressional specificity, agency interpretation reigned.

After first relying on Chevron to rule in favor of the IRS in Lissack v. IRS, on remand the D.C. Circuit again ruled for the agency. At issue was whether a whistleblower was entitled to an award after the IRS allegedly proceeded in a “related action” when the target was the one the whistleblower identified instead of a third party. After acknowledging that the dictionary definition of “related” was broader than the IRS definition, which would favor the petitioner, the court found that it must look to the agency’s rule for its “persuasive value.” The D.C. Circuit found that the IRS definition made “good sense” of the statutory phrase in context and that the IRS had previously considered and rejected a broader definition. Yet again, absent congressional specificity, agency interpretation reigned, here because the agency provided its definition and reasoning during the rulemaking. Likewise, in Jazz Pharmaceuticals v. Kennedy, the D.C. Circuit relied on the FDA’s “longstanding regulatory definition,” which it found Congress incorporated as part of a statutory amendment.

In Solar Energy Industries Association v. FERC, the D.C. Circuit had also relied on Chevron, this time to rule in FERC’s favor to require a utility to purchase solar power from a small power production facility. After remand for consideration of Loper Bright, FERC’s position still prevailed. In this instance, the court relied on industry definitions and prior agency practice to adopt a definition different from the common dictionary definition that cut against the commission’s interpretation.

Then there is IGas v. EPA, the most perplexing agency win. In that case there was no question that Congress had provided EPA with discretion to establish a cap-and-trade regime to control part of an industry. The question was whether Congress set constitutional limits on EPA’s discretion. EPA had given part of the market to historically disadvantaged new entrants in the interest of equity, given part of the market to ultimate consumers, particularly the Department of Defense, and then temporarily allocated the rest of the market according to EPA’s proxy for historical market share. Here the court simply latched on to the market-share part of EPA’s methodology, determined that was a reasonable way to accomplish the statute’s purpose, and found that the method tracked with a prior cap-and-trade program EPA implemented. The D.C. Circuit did not evaluate the text of the act at issue, was unbothered by Congress’s ability and corresponding declination to provide a market share standard in the statute, ignored the flexibility Congress provided to EPA, did not consider the EPA’s contemporaneous interpretation giving it the power to take any non-arbitrary action, and did not consider the text of the prior cap-and-trade statute. Further, the court then ignored the ways in which EPA had deviated from the new market share standard it had newly found and ruled in EPA’s favor.

To be fair, there have been cases where an agency has lost in the D.C. Circuit, but in nearly all of those cases there were special circumstances. For example, the agency had abandoned its appeal and its prior position was represented by a third party, the agency had acted contrary to 70 years of its prior interpretations, the agency’s interpretation would make the exception swallow the rule, or the agency refused to consider factors Congress had specified. See Institutional Shareholder Servs. v. SEC, Crowley Gov’t Servs. v. GSA, PG&E v. FERC, and Sinclair Wyoming Refining v. EPA

 Perhaps Loper Bright did remove one thumb from a judicial scale favoring agencies; but the D.C. Circuit still utilizes the remaining fist full of ways to defer to agencies, sometimes violating multiple and the most accepted statutory interpretation rules to uphold agency action. Hopefully that changes.

November 20, 2025