Last year, the panel discussed the potential impact of the Supreme Court’s decision in West Virginia v. Environmental Protection Agency and its invocation of the major questions doctrine on Federal agency litigation. The major questions doctrine holds that Federal courts should not defer to an agency’s decision regarding the scope and substance of its regulatory authority when that decision concerns an issue of “vast economic and political significance” and the agency does not have “clear congressional authorization” to act. Recently, in Texas v. Nuclear Regulatory Commission, the United States Court of Appeals for the Fifth Circuit, citing West Virginia and the major questions doctrine, held that the NRC lacked the authority to license a private, away from reactor storage facility for spent nuclear fuel. The court held that Congress did not delegate to the NRC the clear authority to license such a facility. Additionally, in its upcoming term, the Supreme Court is scheduled to hear Loper Bright Enterprises v. Raimondo, Docket No. 22-451. This case presents the question whether the court should overrule the long-standing Chevron doctrine or at least clarify that statutory silence concerning controversial powers expressly but narrowly granted does not constitute an ambiguity requiring deference to the agency.

This technical session will explore these and other recent judicial cases questioning seemingly established administrative law precepts to determine their impact on the existing Federal regulatory landscape. The panelists will discuss whether the Federal regulatory landscape is changing and how parties may have to adapt. The distinguished panel proposed will provide diverse perspectives on this topic of concern to all who appear in administrative agency proceedings.