Loper-Bright May Be Double-Edged Sword Limiting Deregulation Too

Westerners used to jokingly refer to the agency that governs most of the landscape between the Rocky Mountains and the Pacific as the “Bureau of Livestock and Mining.” Oil rigs, coal mines, and grazing cows; imperiled owls and old-growth redwoods be damned.

Congress tried to change that in 1976 with the Federal Land Policy and Management Act. It required the Bureau of Land Management to consider “multiple uses” of land, including recreation, scenic views, and the needs of wildlife as well as all the traditional ones.

The Biden administration interpreted that as saying conservation is as legitimate a “use” of public lands as coal mining and clearing forests with giant chains hooked to bulldozers. In May, it finalized a rule to implement a 2021 executive order to conserve land to protect against climate change. Six states sued, including Alaska, which has long pushed the federal government to interpret the ambiguous laws in a way that permits more drilling and mining on the public lands that make up most of the state. It uses the common interpretation of the Supreme Court’s ruling in Loper Bright Enterprises v. Raimondo—that it’s designed to foil overzealous regulators eager to block drillers from the wilderness.

But what if Donald Trump wins the White House again in November? Could pro-regulatory states like California and Colorado cite Loper to defang a second Trump administration using its own spin on ambiguous terms to de-regulate?

Indeed, Loper is shaping up to be a double-edged sword that could eventually haunt the forces of deregulation, though with the current Supreme Court, the sword’s deregulatory side may be sharper than the other at least for a while.

Kelly Dunbar, a partner at Wilmer Cutler Pickering Hale and Dorr LLP, who leads the firm’s administrative law group, says Loper removed the thumb on the scale in favor of agency interpretation of laws regardless of what administration is in power. That includes agencies seeking to weaken or roll back federal regulations. And Bethany Davis Noll, executive director of the State Energy & Environmental Impact Center at NYU School of Law, notes that the Trump administration racked up a series of losses over how it interpreted statutes when the now-overturned doctrine of Chevron deference to agencies was still the law of the land.

If you had to pick one federal law that leaves little to agencies’ imagination, you might pick the American Innovation in Manufacturing Act, passed in 2020.

It authorizes the Environmental Protection Agency to phase out hydrofluorocarbons, potent greenhouse gases used in refrigeration. Written in an era when Chevron deference was falling out of fashion, the law defines common terms and spells out EPA’s role in the phase-out, point by point.

“There are some very precise provisions in the statute,” Noll said.

Even so, many attorneys will tell you that there’s almost no federal law that is written so precisely that it leaves nothing for an agency to interpret. An aggressive judiciary can pull apart implementing rules and regulations post-Loper on just about anything.

In passing FLPMA, Congress defined “multiple use” with a list of often conflicting needs requiring balance that furthers “harmonious and coordinated management” without permanent harm to the land.

Try to coordinate and harmonize the threat of stampeding walruses with the needs of Arctic oil drillers. Or frackers where mating, imperiled sage-grouse strut. You can see the challenge here: the balances depend on each administration’s priorities and subjective reading of the law, potentially running up against Loper each time.

One former Trump administration official is girding for this fight.

Self-proclaimed sagebrush rebel William Perry Pendley, who served as the Trump administration’s acting BLM chief, wrote Project 2025’s section on public lands. Pendley calls for the Interior Department to drill, baby, drill, and return to a more traditional livestock-and-mining interpretation of multiple use that leaves Biden’s conservation rules in a slash pile.

But Pendley has some personal experience with losing litigation over interpretations.

A Montana federal judge in 2020 tossed out a slate of Pendley’s fracking-friendly decisions because the court ruled he was unlawfully serving as acting BLM director. The Trump administration interpreted the Federal Vacancies Reform Act as allowing Pendley to indefinitely perform the duties of BLM director while not actually serving in that role.

With Chevron still firmly in place, US District Judge Brian Morris declined to defer to the agency’s interpretation even when he could have.

Some lawyers say the pre-Loper and post-Loper worlds are a distinction without a difference, in part because courts have rarely cited Chevron in recent years—all the more reason that Loper could be deployed as a tool to maintain the status quo.

Nobody gets deference now–not even sagebrush rebels.