Two weeks ago, the Supreme Court issued two major decisions concerning judicial review of federal agency regulations. Already, plenty of ink has been spilled praising and deriding the decisions. But to understand whether the decisions should make you gleeful or panicked, it is important to understand both their limits and their breadth.

In Loper Bright Enterprises v. Raimondo, the Court overruled a 40-year-old decision that established the principle that a court should defer to the relevant agency as to reading of a statute if the statute doesn’t spell out the answer and the agency’s view is reasonable. Now, the Supreme Court has instructed lower courts to put their own views above those of the agency to whom Congress delegated authority: Instead of considering whether the agency’s view of the statute that it is charged by Congress with implementing is reasonable, courts will decide what they think is the best answer. 

Because statutes very often don’t provide the answer, leaving it to be fleshed out during implementation, the result of Loper Bright is necessarily that courts will become policymakers. And because lower courts cited Chevron deference thousands of times in deciding cases over the past 40 years, the impact of overruling that precedent will, without doubt, be significant. At the same time, the importance of judge-shopping and nationwide injunctions—whatever your views on those topics—will only increase.

That said, the Supreme Court’s about face should not affect all cases challenging agency action. To begin with, as the majority opinion concedes, while Chevron deference applied to statutory interpretations of ambiguous terms or broadly worded provisions, many statutes unambiguously give agencies discretion to make policy decisions about how best to implement the law (a point emphasized in Public Citizen’s amicus brief). For instance, the Motor Vehicle Safety Act charges the Department of Transportation with issuing motor vehicle safety standards that are “reasonable, practicable, and appropriate.” The ruling in Loper Bright should not impact either how agencies implement such statutes or the level of respect that courts afford to agencies’ decisions in doing so, because the best reading of these statutes is that Congress delegated to the agency the discretion to make the decision. 

In addition, Chevron deference was limited to judicial review of an agency’s view about a legal question—what a statute meant—not to an agency’s factual findings. An agency’s factual findings and decisions based on them (such as findings concerning product safety, health hazards, or cost-benefit balance) should be unaffected by the Court’s new decision. Instead, those aspects of the agencies’ work should continue to be reviewed under an “arbitrary and capricious” standard.

Likewise, the decision does not speak to Auer/Kisor deference—courts’ deference to agencies interpretations of their own regulations. The Court largely affirmed that deference in 2019.

Although the Court’s decision in Loper Bright will not affect every challenge to every agency action, its disruptive potential is nonetheless substantial—both in challenges to the many recent and future agency regulations as to which deference would have applied and in challenges to older regulations.

As to older regulations, the Court says that its decision does not alter the precedential value of court decisions that applied Chevron deference. Most challenges to agency regulations are decided in the lower courts, not the Supreme Court, however, and the precedential value of decisions from those courts is limited to courts themselves. For instance, the Fifth Circuit is not bound by precedent of the DC Circuit (and vice versa). Therefore, an agency regulation upheld in the DC Circuit in an opinion that applied Chevron could be challenged anew in the Fifth Circuit. 

That possibility is not new. Even before Loper Bright, we have seen, especially over the past few years, examples of industry groups or Republican attorneys general filing several suits in several different courts to challenge one agency rule: In 2016, the Department of Labor’s Fiduciary Rule was challenged in four different district courts, located in four different circuits. The Federal Trade Commission’s Noncompete Clause Rule is currently being challenged in three different district courts, located in three different circuits. The Department of Education’s SAVE plan is currently being challenged in two different district courts, located in two different circuits. This situation presents its own set of problems, but it is not a situation created by Loper Bright.

What is different now is that, in a decision issued on the last day of the term, in a case called Corner Post v. Board of Governors of the Federal Reserve System, the Supreme Court upended the 6-year statute of limitations that applies to most agency actions. Disagreeing with the long-held view of the courts of appeals, the Supreme Court held that the 6-year limitations period does not accrue for any particular person or entity until that particular person or entity is injured. So if you want to challenge an old regulation—perhaps one previously upheld under Chevron—just form a new trade association, start a new corporation, or open a new store that is affected by the old regulation; the new entity will have a new 6-year period to bring a lawsuit.

Again, the impact of this decision will be substantial and substantially disruptive, allowing repetitious challenges to many regulations issued by, for example, the Food and Drug Administration, the Consumer Financial Protection Bureau, and Centers for Medicare & Medicaid Services. 

Importantly, though, the decision does not open up the time within which to challenge every regulation. The 6-year limitations period addressed in Corner Post comes from a statute of limitations that applies only in the absence of a specifically applicable one. The statutes authorizing many agency rules, however, specify a 60-day limitations period that runs when the agency issues the rule. (Most of those statutes also require review in the courts of appeals, where, if there are multiple petitions for review, they are consolidated in a single court of appeals. Those cases thus avoid the problem of multiple reviewing courts issuing conflicting rulings.) Examples include regulations under the Clean Air Act and Clean Water Act, motor vehicle safety standards, and occupational health and safety standards. Therefore, while Corner Post may restart the clock, unendingly, to challenge many agency rules, it does not open up every previous agency action to a new lawsuit.

So disruptive? Yes. Important changes? Yes. A brave new world? TBD.

Allison Zieve is the Director of the Public Citizen Litigation Group.