Former EPA Deputy General Counsel Ethan Shenkman Speaks with Bloomberg Law About Uncertainties After SCOTUS' Regulatory Shakeup

In the month following the U.S. Supreme Court's decision to overturn the Chevron doctrine in Loper Bright Enterprises v. Raimondo, federal judges are grappling with how to apply the 80-year-old Skidmore precedent, which recognizes that government agency interpretations have the power to persuade, if not the power to control. Confusion over so-called “Skidmore deference” could lead to even greater uncertainty as parties launch new challenges to agency rules.

To clarify these issues, Bloomberg Law turned to Environmental partner and former U.S. Environmental Protection Agency and Department of Justice official Ethan Shenkman in "Courts Show Little Interest in Skidmore as a Chevron Alternative."

According to Shenkman, the ruling doesn't eliminate all forms of deference to agencies; courts can still give significant weight to agencies' findings, especially when laws specifically delegate authority to them.

"To the extent agencies can frame questions in terms of science and technical expertise, they'll do so because of the sense that courts will still be inclined to give deference on those types of questions, as opposed to purely dictionary definition-based interpretation of statutes."

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