USA – TEXAS Trends and Developments Contributed by: Gerald J. Pels, Gerald D. Higdon and Elizabeth Corey, Troutman Pepper Locke
ing interpretation to agencies instead of to courts. It is that tension that more recent cases have sought to resolve. Massachusetts v EPA (2007) is the high-water mark of the empowered agency. There, the Court rejected EPA’s argument that it lacked the authority to regu- late greenhouse gases (GHGs). The Court held that GHGs fit within the CAA’s “air pollutant” definition and that EPA could not decline to regulate them without grounding its refusal in the statute. Because the Court had ruled that GHGs are “air pollutants”, EPA then sought to formally determine whether GHG emissions endangered public health or welfare. The resulting 2009 Endangerment Finding was the EPA’s official scientific and legal determination, concluding that certain GHG emissions from vehicles or engines pose a threat to public health and welfare, laying the legal foundation for federal US climate regulation. Eventually, the tide of agency deference began to subside. In West Virginia v EPA (2022), the Court considered the Clean Power Plan (CPP), which used the Endangerment Finding as its justification to seek to reduce carbon emissions from coal-fired power plants. Ultimately, the Court invoked the Major Ques- tions Doctrine (MQD), a legal principle stating that Congress must have explicitly and clearly authorised a federal agency to issue a regulation of vast “eco- nomic and political significance” before the agency may do so. The CPP was “generation shifting” in its design, meaning it sought to increase the use of electricity from some energy sources while decreasing the use of electricity from others. The Court held that EPA lacked clear congressional authorisation under the CAA for the CPP’s generation-shifting design. The Court’s reasoning was a clear-statement rule: when an agency claims authority of vast economic and political significance, courts will not infer it from ambiguous or ancillary statutory language; Congress must speak plainly. Although West Virginia struck down the CPP, it did not strike down the Endangerment Finding. It did, however, lay a legal framework EPA later used, as one basis, to justify the Rollback. Two years later, in Loper Bright Enterprises v Rai- mondo (2024) the Court removed the structural scaf- folding that supported decades of expansive agency
interpretation. Formally overruling Chevron , the Court held that the Administrative Procedure Act requires courts to exercise independent judgment and to decide questions of statutory meaning de novo. Thus, agencies would no longer receive binding deference simply for adopting a reasonable reading of ambigu- ous text. Loper Bright expressly preserved Skidmore ’ s more modest, non-binding respect as the surviving standard. Read together, the two decisions restate the principle, as old as Marbury v Madison , that it is for the courts to “say what the law is”. These recent decisions should not, however, be read as the end to all forms of agency deference. Seven County Infrastructure Coalition v Eagle County (2025) organises the field: de novo review governs what a statute means; deferential review governs the discre- tionary, technical and predictive judgments an agen- cy makes within the authority the statute confers. In Seven County , the Court reviewed an environmental impact statement for a proposed Utah rail line, and held that courts owe agencies “substantial deference” on the scope and content of a review under NEPA, and that an agency need not analyse the upstream and downstream effects of separate projects lying outside its regulatory authority. Crucially, Seven County did not retreat from Loper Bright ; it drew the line. The distinction in law versus discretion is the real les- son of the last three years. Deference did not vanish; it relocated. Skidmore respect survives as the floor for an agency’s interpretive views, and Seven County pre- serves robust deference for the fact-laden, judgment- heavy calls that are the daily work of administration. What the Court has withdrawn is the agency’s claim to control the meaning of the statute itself. The road from West Virginia and Loper Bright leads to EPA’s Rollback of the Endangerment Finding Background Drawing upon the Court’s West Virginia and Loper Bright holdings, on 12 February 2026, EPA rolled back its 2009 Endangerment Finding relating to GHGs, which served as the basis to establish emission standards for motor vehicles and engines, known as “tailpipe” regulation. In so doing, EPA largely eroded
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